Citizens for Criminal Justice Reform – New Hampshire

A bill written by Citizens for Criminal Justice Reform to ban residency restrictions against sex offenders got a semi respectful kiss of death this week in the Senate Judiciary Committee. It voted 5-0 to send the proposal to interim study, but the Senate is not doing any interim studies this year. 

A doomed HB 1237 now goes on the Senate consent calendar next week for a routine and unanimous voice vote. This will be the third time the upper chamber has killed legislation to stop towns from unconstitutionally telling sex offenders where they can live.

Lower courts have struck down these local zoning codes in both Franklin and Dover, where such policies reduced the number of public registrants by about half in the first year. Nobody knows where those unpopular people went. They may have left town, they may have stayed and stopped registering, they may have become homeless.

Sen. Sharon Carson (R-Londonderry), the Judiciary chairwoman, made the motion for interim study as a matter of local control. She explained that Holderness, Sanbornton, Tilton, Northfield, and Boscawen still enforce similar residency codes.

“We should allow them to do that,” the chairwoman said. “Let it happen at the local level.”

Carson also reported on some research she had done. Derry considered imposing residency restrictions in 2008, she noted. Bernard Streeter, the mayor of Nashua in 2008, had vetoed a residency restriction approved by the city council.

There was no other discussion of a bill that received support from Earl Sweeney, deputy commissioner of Safety; from the Manchester police; from the Civil Liberties Union; from NH Legal Assistance; from CCJR and from editorials in the Concord Monitor and the Nashua Telegraph.

One state rep opposed the bill because a young relative of his had been molested by a man living in the child’s home. That lawmaker said all sex offenders deserve a terrible life punishment in line with the harm they do to their victims.

Voting with Carson to kill the bill were Sam Cataldo (R-Farmington), Bette Lasky (D-Nashua), Donna Soucy (D-Manchester), and David Boutin (R-Hooksett).

Senate Judiciary approved the same bill by 4-0 in 2010, but the full Senate tabled the bill in an election year. Last year the Senate amended the same bill into a House study committee, saying it was “controversial” in the calendar blurb. House members of the Committee of Conference refused to okay the Senate version of the bill, and it died.

Below is a packet of research on residency restrictions CCJR gave all five Senate Judiciary members after the public hearing, in addition to a 60-page handout at the hearing. There was no indication they had read any of it.

Here are some thoughts in response to the hearing testimony April 29 on HB 1237 to ban residency restrictions against sex offenders. Thank you for hearing both sides of the debate over this important bill, which passed in the House by 231-97. This is the third time the House has overwhelmingly approved a ban on these local residency codes. You can be sure they did it to protect the public and not to please registrants.

1. A case study in vigilantism. Many neighbors in Hooksett tried to run a sex offender, Joel Dutton, out of town four years ago because they thought he was living too near a park by the Merrimack River.

When the unhappy group asked the selectmen to impose residency restrictions, their selectman and soon-to-be state senator, David Boutin, told them these local codes are unconstitutional based on the court rulings in Dover and Franklin striking them down. His position is a matter of record in the minutes to the selectmen’s meeting and in a broadcast WMUR interview.

The citizens soon reported the registrant for sexually abusing his seven-year-old niece in his backyard in plain view of everyone. Happily, the prosecutor reviewing the evidence dropped all charges. I talked to that young girl and she was furious at a mob of adults who would put her through the bullying she took at school and for the death threats on a vigilante website about her family. The abuse got so bad her father moved his side of the family to Nashua. He had been out of work and the relocation was a hardship.

2. I spoke this week with Manchester Police Chief David Mara, who confirmed what Earl Sweeney told you today, that his force opposes residency restrictions for Manchester because the authorities are doing fine without them. The Manchester police worked hard to kill a proposal for residency restrictions in the Queen City six years ago. Here is an article about that effort from the former Manchester Daily Express newspaper.

A proposal to restrict where registered sex offenders can live in Manchester was unanimously killed by a committee of aldermen on Tuesday following testimony from members of the police department.

The proposal would have restricted sex offenders from living near public areas in the city where children gather, such as schools, day care centers, churches, parks and libraries. It was being pushed by former Ward 4 Alderman Leo Pepino.

Several members of the police department were at the meeting to voice their opposition to the residency restriction ordinance, including Sgt. Scott Fuller, who spent 7 years in the juvenile division.

Fuller said that during that time, there were only four reported cases of a sex offender in Manchester re-offending. He said that in each case, the repeat offender already knew the victim.

“There are very few stranger attacks,” Fuller said.

He said previous studies on residency restrictions have concluded that there is no correlation between where a sex offenders lives and the recidivism rate. Fuller said the studies did show that residency restrictions increase the number of homeless sex offenders, making it more difficult to track them.

“Whether we like it or not, Manchester is an attractive place for sex offenders,” Fuller said. “We have a halfway house, low-income housing and other options not found in every community. They’re not going to leave Manchester if residency restrictions are in place.”

Members of the Committee on Public Safety, Health and Traffic voted to kill the issue. The committee also made a motion to have Mayor Frank Guinta increase funding for the police department’s compliance check program, which aims to ensure that sex offenders are registering properly.

The program has helped the city maintain a 97 percent compliance rate.

“I’m led to believe that our efforts would be better spent supporting a program that’s worked in the past,” said Ward 4 Alderman Jim Roy.

Pepino tried to argue that residency restrictions have worked in other communities, but did not have statistics on hand to back up his claim. He said that talk of sex offenders going underground due to such restrictions is just “rhetoric.

Why hurting sex offenders as much as possible with residency restrictions is a bad idea. I respect the anger of the state rep who told you one of his in-laws molested a step daughter for two years. But that tragedy reinforces a hard truth. The main threat to kids is from their own families, babysitters, scout leaders, Sunday school teachers, and Little League coaches. Residency restrictions aim to stop the mythological mean stranger predator watching the playground.  By the way, other children commit roughly half the sexual abuse crimes against children. The real danger is already playing on the merry go round.

4. These codes make offenders homeless or drive them elsewhere. Franklin Mayor Ken Merrifield told me over lunch at the Corner View Restaurant in Concord two or three years ago that the city's residency restriction against sex offenders had reduced the size of the local public registry by about 50 percent. That sounded true to me because neighboring towns had all passed copycat codes in apparent response to the influx of unwanted people from Franklin.

We know as a matter of court record the same thing happened in Dover. The July 30, 2009, decision by Justice Mark Weaver of Dover District Court against the residency code said the Dover public registry had 29 names at the time residency restrictions were adopted. A year later the tally was 17. A Detective Harrington headed up the city's registry unit and told the court another 14 registrants had wanted to move into Dover, but their proposed homes were in restricted areas. None of them moved into the city.

You can look at that data two ways. On the one hand the Dover ordinance reduced the registry from 29 to 17, a 41 percent decrease similar to the decline in Franklin. Or you could say the Dover code kept the registry at 17 instead of the 43 who would have lived there without the restriction. So the registry would have been 2.5 times bigger absent the ordinance. Dover might have felt safer for that, but some destabilized registrants got shipped elsewhere. The disruption could not have made the whole state of NH any safer.

5.  Here is a summary of the key research on sex offender recidivism and treatment programs to refute the perception they are incurable serial offenders. 

Fact: NH Sex offender recidivism rates are low

John Stephen, the former assistant safety commissioner, testified in 2002 in favor of HB 1426 to start posting the sex offender registry on line. He told the Senate Judiciary Committee a public list was a good idea because the current sex offense recidivism rate was only 2 percent. He said the 717 people who had ever been on the non-public registry to date had been arrested for 16 new sex crimes: six for aggravated felonious sexual assault, four for felonious sexual assault, two for sexual assault, three for indecent exposure, and one for criminal restraint. “Sixteen out 717,” said Stephen. “You know, I think that tells you that this (non-public registry) law is working.” He assumed publishing the registry would lower the rate even more. We at CCJR would humbly suggest the Internet listing was a solution without a real problem.

Myth: Sex offenders are all mean strangers

An Ohio prison intake report on sex offenders imprisoned in 1992 revealed that 2.2 percent of child molesters were strangers to their victims, and 89 percent of perpetrators had never been convicted before. A 2006 report for the Ohio Sentencing Commission said 93 percent of molestation victims were well known to their perpetrators, over half the offenders victimized close relatives, and 93 percent of molesters had never been arrested for a previous sex crime. 

A December 2009 study by David Finkelhor of UNH and colleagues for the US Justice Department analyzed national sex crime data from 2004. That year the estimated population of underage sex offenders was 89,000, and they had committed 35.8 percent of all sex crimes reported to police. One in every eight juvenile sex offenders was under age 12.

Fact: Treatment helps sex offenders

A study in 2000 by the Vermont Corrections Department tracked 190 sex offenders released a decade earlier. The arrest rate over 10 years for new sex offenses was 3.8 percent for people who had completed the sex offender treatment program.

A Colorado recidivism study in 2003 led by Kerry Lowden tracked 3338 sex offenders released from prison between 1993 and 2002. After three years in the community, 5.3 percent had been arrested for a new sex crime.  Each month an inmate took part in the intensive therapeutic community for sex offenders behind the walls reduced by 1 percent the risk of committing a later sex crime. The report said these treatment programs “profoundly improve public safety as measured by officially recorded recidivism.”

Lorraine R. Reitzel and Joyce L. Carbonell published a meta-analysis in 2006 of nine studies of recidivism among juvenile sex offenders with a combined sample of 2,986 kids. The sex crime recidivism rate was 12.5 percent for young offenders tracked for an average of 59 months. The rate was 7.37 percent for kids who had taken a sex offender treatment program and 18.9 percent for those who had not.

A 2009 report by Robin Goldman of the Minnesota Department of Corrections compared two samples of 1,020 sex offenders released between 1999 and 2003. One group had taken an intensive sex offender treatment program and the other had not. The treated group had a 27 percent lower sex crime recidivism rate. The report concluded, “These findings are consistent with the growing body of research supporting the effectiveness of cognitive-behavioral treatment for sex offenders.”

Fact: Sex offenders have low sex crime recidivism

The U.S. Justice Department evoked the myths about high sex offender recidivism in a June 2002 amicus brief in an Alaska sex offender registry appeal that went to the U.S. Supreme court, Godfrey and Botelho v. John Doe. The solicitor general, Theodroe B. Olson, wrote that sex offenders “exact an uniquely severe and unremitting toll on the Nation and its citizens for three basic reasons: they are the least likely to be cured, they are the most likely to reoffend, and they prey on the most innocent members of our society.” http://www.justice.gov/osg/briefs/2001/3mer/1ami/2001-0729.mer.ami.html. There is much research to the contrary.

A U.S. Justice Department report in 2003 tracked 9,691 sex offenders released from prisons in New York, California, Ohio and 12 other large states in 1994. Their recidivism rate for new sex crime arrests and convictions after three years on parole was 5.3 percent. 7.3 percent of child molesters with two or more prior arrests for that crime were charged anew for molesting. That compares with a 2.4 percent sexual recidivism rate for child molesters with only one prior arrest for that crime.

A report to the Ohio Sentencing Commission in 1989 said 8 percent of sex offenders were convicted of a new sex crime within a decade. The 10-year Ohio recidivism rate for incest was 7..4 percent. http://www.drc.state.oh.us/web/Reports/Ten_Year_Recidivism.pdf

A 1998 Canadian Government study by Karl Hanson and Monique Bussiere, entitled “Predicting Relapse: A meta-Analysis of Sexual Offender Recidivism Studies,” examined 61 research efforts between 1943 and 1995 with a combined sample of 28,972 sex offenders. The overall recidivism rate for new sex offenses was 13.4 percent during the average follow-up period of four to five years. Of the 9,603 child molesters in the combined cohort, the rate was 12.7 percent. Some of these studies dated back to the period when only stereotype serial sex offenders went to prison, thus weighting the results toward greater recidivism.

Roger Hood and three British colleagues followed 162 released sex offenders for four years and tracked 62 others for six years. Their report in 2002, entitled “Sex offenders emerging from long-term imprisonment; A Study of Their Long-term Reconviction Rates and of Parole Board Members' Judgements of Their Risk,” found 1.2 percent were re-imprisoned for a new sex crime after two years.  The report concluded, “These facts need to be more widely recognized and disseminated if there is to be rational debate on this emotive subject.”

Karl Hanson and Morton-Bourgon published a similar meta-analysis in 2005 of 73 recidivism studies with a combined cohort of 19,267 sex offenders. After an average of nearly six years in the community they had a new sex crimes recidivism rate of 14.3 percent.

A 2007 study by the Missouri Department of Corrections tracked 3,166 sex offenders released between 1990 and 2002. Twelve percent had been re-arrested for a new sex crime in those 12 years, and 10 percent had been re-convicted. The report also looked at sex offenders released in 2002. In the first three years on parole their sex crime recidivism rate was 3 percent. The report concluded, “Due to the dramatic decrease in sexual recidivism since the early 1990s, recent sexual re-offense rates have been very low, thus significantly limiting the extent to which sexual reoffending can be further reduced.”

A 2007 report by the Tennessee Department of Safety found that 4.7 percent of 504 sex offenders released from prison in 2001 were arrested for a new sex offense after three years. The sex crime recidivism rate was zero for offenders whose original crime was incest.

A 2007 report by Jared Bauer of the West Virginia Division of Corrections tracked 325 sex offenders for three years after release from prison in 2001, 2002 and 2003. The recidivism rate for any return to prison, not just for sex crimes, was 9.5 percent. Only six parolees returned for new sex related crimes, including three for failing to properly register as a sex offender. The sex crime recidivism rate was slightly less than 2 percent. Only 1 percent had an actual sex crime victim.

A 2008 report by the California Department of Corrections and Rehabilitation tracked 4,280 sex offenders paroled in 2003. In the first year 2.43 percent had been arrested for new sex crimes. The cumulative totals were 3.27 percent at the end of the second year and 3.55 percent after three years.

A 2008 study by California's Sex Offender Management Board reported on 4,204 sex offenders released in 1997 and 1998. 3.38 percent were convicted of new sex offenses in the next decade.

Utah criminologist Larry Bench tracked 389 Utah sex offenders for up to 25 years after release. His 2008 report disclosed that 7.2 percent had been arrested for a new sex crime.

An Indiana Corrections report in the spring of 2009 found that sex offenders released in 2005 had compiled a 1.05 percent sex crime re-conviction rate in three years. The study said this rate was “extremely low” and showed “a great deal of promise.”

Stan Orchowsky and Janice Iwama authored a 2009 study for the U.S. Justice Research and Statistics Association which showed similar low sex crime re-arrest rates after three years for sex offenders released from prison in 2001. The rates by state were as follows: Alaska 3.4%, Arizona 2.3%, Delaware 3.8%, Illinois 2.4%, Iowa 3.9%, New Mexico 1.8%, South Carolina 4.0%, and Utah 9.0%.  The comparison three-year national rate was 5.3 percent noted previously for inmates released in 1994.

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 at http://muskie.usm.maine.edu/justiceresearch/Publications/Adult/Sexual_Assault_Trends_and_Sex_Offender_Recidivism_in_Maine_2010.pdf

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. In comparison, 80 percent of all 14,400 inmates released in 2005 had been arrested for a new crime by 2010 and nearly half had returned to prison for those convictions. The author of the report, Ivan Kuzyk, noted these low re-offense rates for sex offenders appear to contradict the conventional wisdom that sex offenders have very high sexual re-offense rates. Here is the full report. http://www.ct.gov/opm/lib/opm/cjppd/cjresearch/recidivismstudy/ex_offender_recidivism_2012_final.pdf

Sex offender laws are based on dubious science

39 Proponents of tougher sanctions against sex offenders often cite a Canadian study published in 2004, “Lifetime Sex Offender Recidivism: A 25 year Follow-Up Study,” led by Canadian researcher Ron Langevin. It is worth close examination. The authors looked at 320 Canadian sex offenders referred to a single clinic for psychiatric evaluations between 1966 and 1974, when treatment programs for this group were rare and experimental. The report used an unusual definition of a recidivist as someone who had committed two or more sex crimes in their lifetime, even crimes they did before researchers began to follow them. The accepted definition in criminology is someone who commits a new sex crime after release from prison.

Langevin reported a 61.1 percent sex crime recidivism rate, including 51.1 percent for incest. The researchers also tabulated confessions the offenders made during counseling and new arrests that failed to bring convictions. Adding those presumed crimes to actual convictions increased the overall sexual recidivism rate to 88.3 percent, including 84.2 percent for incest. Measured this way, molesters of young children outside their own family had an even higher rate, 94.1 over 25 years. To our knowledge, that is the highest reported rate in any of the hundreds of existing recidivism studies. It underlies much of the widespread belief that all sex offenders are incurable and unrepentant.

Former New Hampshire Attorney General Kelley Ayotte, the author of the Predator Act, told the Senate Judiciary Committee vetting her bill about 17 repeat sex offenders who had gotten off too lightly. Then she 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.”

Her claim was false even based on the supporting Langevin research she presented. In the rest of her remarks Ayotte consistently blurred the terms “pedophile” and “sex offender.” Many lawmakers still believe the recidivism rate is 94 percent for the whole registry class.

Ayotte was citing some advocacy science. Critics of Langevin say his cohort was the worst of the worst offenders. Canadian researcher Karl Hanson has called it a nonrandom sample chosen for evaluations in connection with major prosecutions, civil commitment proceedings or insanity defense cases. This group also came under scrutiny 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 prison populations of sex offenders by fifty- and a hundred-fold. The group in prison now is far less prone to recidivism than members of the Langevin study. Only monsters went to prison for sex offenses 40 and 50 years ago. The phrase “domestic violence” had not been coined yet.

Canadian researcher Cheryl Webster and colleagues have called the Langevin study so flawed it lacked any scientific integrity. In a rebuttal entitled “Results by Design: The Artefactual Construction of High Recidivism Rates for Sex Offenders,” Webster said more than half the individuals in the sample were already recidivists by Langevin’s definition at the time of their evaluations, thus ensuring at least a 50 percent recidivism rate. Webster noted the Langevin sample was much larger at first. His team removed any people from the study whose criminal records had been lost or purged from the justice system after 15 years for lack of new crimes or charges. In effect, the study deleted most of the non-recidivists and skewed the recidivism rate. In a reply to critics, Langevin cautioned against making claims about all sex offenders based on this sample. He defended his definition of recidivism as one of many legitimate ways to measure it.

Those promoting tough sex offender laws and harsh court decisions often rely as well on a 1997 study led by Robert Prentky. 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 were 32 percent for molesters and 25 percent for rapists. 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 cohort dates from the same period as the Langevin findings and included a narrow sample of men already adjudicated to be an acute risk to reoffend. The Prentky researchers concluded, “The obvious, marked heterogeneity of sexual offenders precludes automatic generalization of the rates reported here to other samples.”

 Myth: The sex offender registry protects the public

Researcher Brian Oliver reviewed a dozen studies on the effectiveness of the sex offender registry as of 2012. None showed that this presumed tool for enhancing public safety had any effect on sex offense recidivism or prevention. He explained why. Sex offenders have low sexual recidivism rates, contrary to popular belief, and well over ninety percent of sex offenses are committed by people who are not registered sex offenders. Below are Oliver’s summaries.

Zevitz (2006) compared the recidivism rates of 47 Level III sex offenders subjected to Wisconsin’s highest level of notification with 166 Level III offenders subjected to limited notification across a 4.5-year follow-up period. He found no differences in sex offense rearrest rates between the groups.

Sandler, Freeman & Socia (2008) conducted a time series analysis examining differences in sexual offense arrest rates before and after the enactment of New York State’s Sex Offender Registration Act. The results provided no support for the effectiveness of registration and community notification laws in reducing sexual offending by: (a) rapists, (b) child molesters, (c) sexual recidivists, or (d) first-time sex offenders.

Tewksbury & Jennings (2010) examined the conviction records of 759 sex offenders from Iowa released between 1992 and 1996 (who were not required to register) with 823 sex offenders from Iowa released between 1997 and 2002 (who were required to register). The two groups did not differ on reconviction rates for new offenses.

Letourneau, Levenson, Bandyopadhyay, Sinha & Armstrong (2010) compared 3,231 male sex offenders from South Carolina who were required to register with 2,733 offenders who were not required to register. They found no difference in recidivism rates between the groups.

Madden, Miller, Walker & Marshall (2011) compared 755 sex offenders released from prison in Arkansas between 1987 and 1989 (who were not required to register) with 2,165 registered sex offenders released between 1997 and 1999 (who were required to register). There was no difference between the two groups on sexual recidivism rates.

Tewksbury, Jenning & Zgoba (2012) compared 247 sex offenders released from New Jersey prisons between 1990 and 1994 (who were not required to register) with 248 sex offenders released from New Jersey prisons between 1996 and 2000 (who were required to register). They found that whether or not an offender had to register was not related to sexual recidivism risk.