Sex Crime and Sex:

Slate's Explainer reports:

How do psychologists assess the risk that a sex offender will strike again?

Through a combination of clinical judgment and statistics. A forensic psychologist interviews the convict, speaks with his family, and reviews police reports and prison records. The psychologist combines this research with actuarial assessments designed to predict whether an offender will commit another crime.

These actuarial tools have become common only in the past 10 years; today, most forensic psychologists recognize their value in predicting recidivism. Researchers design the assessments by examining sex offender databases. They look for the variables that best correlate with repeated criminal activity, then whittle these down to the most important factors.

The simplest tool for evaluating sex offenders is the Rapid Risk Assessment for Sex Offense Recidivism. The RRASOR (pronounced "razor") includes just four items. A sex offender gets one point for being under the age of 25 at the time of his release from prison, another if any of his victims were male, and a third if he wasn't related to his victims. He gets up to three more points depending on how many sex crimes he's been charged with.

The most dangerous offenders, then, are young adults who have committed multiple sex crimes against boys they've never met before. According to the RRASOR's table of probabilities, these six-point cases have more than a 73 percent chance of committing another crime within 10 years. . . .

Let's say that the RRASOR test seems like an accurate predictor, and in particular sex criminals (overwhelmingly male ones) who attacked a boy are found to be substantially likelier to reoffend than those who attacked a girl. May parole boards and sentencing judges take the test's result into account? (1) Would this be sex discrimination, on the theory that it discriminates based on the sex of the victim, though not of the offender? (2) Would it therefore violate the Equal Protection Clause? (Note that the Equal Protection Clause has been interpreted as presumptively barring discrimination based on sex, though generally not discrimination based on sexual orientation.)

LiquidLatex (mail):
Ofcourse it does by it's very own admission of using age as a qualifier for recidivism.
7.14.2005 8:38pm
Keith Hilzendeger (mail):
Sure it's sex discrimination, but wouldn't the government's interest in keeping a recidivist sex offender off the streets (or out of the rectory) meet its burden under an intermediate scrutiny analysis? How about under Lawrence and Romer's rational-basis scrutiny?
7.14.2005 8:41pm
Eugene Volokh (www):
Age discrimination is not really that relevant here; the Court has never interpreted the Constitution as presumptively barring age discrimination.

Keith: What about Craig v. Boren's condemnation of discrimination based on statistics?
7.14.2005 8:43pm
cw (mail):
The relevant definition of discriminate is to make a make a choice or judgement based on bias. A court presented with sound statistical evidence has no rational or ethical opportunity for discrimination. Rationally, ethically, the decision is taken out of their hands. If I am preseneted with sound statistical evidence that fire burns, I cannot rationally find otherwise. In fact, the only discrimination possible in this instance is when a judge rules contrary to the statistical evidence due to some bias.
7.14.2005 10:15pm
John Tabin (www):
I think is "not directly." They can take into account the recommendation of a psychologist, and he may use actuarial tools like RRASOR as part of his assessment of the convict. After all, this is just a more sophisticated version of relying on the psychologist's expertise and experience, i.e. "I've seen/read about cases similar to this, and what happened was..."

But I think for a parole board to adopt a simple policy of "high RRASOR score = parole denied" would be an Equal Protection violation. (I do, by the way, think that Equal Protection should apply to sexual orientation; I agreed with O'Connor in Lawrence.)

If that's not a sufficiently bright-line standard, than I'd lean toward saying that parole boards can't take a test like RRASOR into account at all, even indirectly, until the "Nothing in this Constitution shall be construed as" anti-pedophile amendment is passed. Supermajority support for that one should be a political no-brainer.
7.14.2005 11:18pm
John Tabin (www):
I think the answer is "not directly." And that I should have hit preview first.
7.14.2005 11:20pm
I think we should stop trying to predict this. Those that commit such crimes should be locked up for life in some way. Perhaps we could let them live in a "closed town," a town with other released convicts for similar crimes. They would be allowed to live a somewhat normal life there. But no children would be allowed to visit. No convict would be allowed to leave. And the punishment for trying to leave would be harsh--life in solitary or execution.

I'm tired of having judges and parole boards release these guys and then pretend that they're surprised when they strike again.
7.14.2005 11:55pm
neo-libertarian (mail) (www):
I wouldn't say immediately that the RRASOR is inappropriate sex discrimination, but the Slate article is either sex discriminatory or is using the grammatically correct neutral form of 'he.' It'd more clearly be sex discrimination if a point were given or subtracted based on the offender's sex, if men offenders got a point and women offenders didn't.

The parole process is a way to get out of a full sentence, so it's not a right or an entitlement. The standard, then, is lower than if the felon were entitled to leave but RRASOR were keeping him/her inside. The other factors like multiple offenses, age or whatever else are fair game, since parole is a subjective matter. In general, I'd say statistical discrimination is a useful tool for bigots and morons to use against unpopular groups (in addition to its legitimate uses), and should be avoided in situations like these, but parole is (again) very subjective. It's troubling to decide someone's fate because other people like him have done good or bad things.

It is sex discrimination, since it discriminates based on sex, but the 14th just says "equal protection of the laws" and doesn't explicitly say all sex discrimination is out (the draft is still men-only, as are most combat roles in the military). Still, it seems to me that the 'gay' pedophiles have a least a shot at making a case for discrimination relative to 'straight' pedophiles (since they're getting edged out of parole for abusing boys and not girls). The sexual orientation discrimination is a lot closer, assuming one accepts that the 14th forbids it.

The real problem is parole itself. It's going to get messy introducing a subjective system wherein a few people can attempt to project their own values (however popular or unpopular ) and judgment (however sound or unsound) onto possibly reducing a prisoner's sentence. I think we need to scale back or eliminate the parole system itself, rather than rearranging the manner in which it is provided. That goes extra for sexual offenders, many of whom deserve capital punishment.
7.15.2005 1:23am
Wow. It'd be nice if reality crept into this conversation. The test is designed to assess the possibility of recidivism. IF IT IS IN FACT BASED ON VALID EVIDENCE THAT SHOWS THAT SEX OFFENDERS WHO ATTACK MALES ARE MORE LIKELY TO REOFFEND, then the test is a legitimate tool for assessing the likelihood of reoffense. The State is then merely using a scientific tool at its disposal -- it's the SEX OFFENDER who is doing the discriminating (making a choice or judgment based on his bias for male victims). I'll cheer the day when we all realize that the Constitution doesn't require us to lose all common sense, but until that day, I'm waiting for the lawsuit over separate public restrooms for men and women.
7.15.2005 12:01pm
arbitraryaardvark (mail):
Perhaps the article oversimplifies the nuances of the research - that's been known to happen. But i'm concerned that "sex offender" is a broad brush. Scenario A: A 19 year old man agrees to perform oral sex for $20, but his client turns out to be a vice cop. Sex offender. Scenario B: A man rapes his grandaughter, who then kills herself. He gets a good lawyer and cuts a deal. Sex offender. Scenario A gets at least 3 points, scenario B as few as zero.
One issue is specific versus general deterrance. People who kill their spouses are unlikely to go around killing other people, but the system should treat them severely to discourage other people from killing their spouses.
7.15.2005 6:19pm
David Chesler (mail) (www):
Why aren't we so gung-ho to lock up offenders whose offences are non-sexual on the basis that such folks are likely to offend again?

Meanwhile, if the RRASOR researchers find that sex offenders who had Swedish surnames at the time they committed the offense were differently likely to re-offend upon release than the general population, can that highly-suspect-but-not-always-absolutely-forbidden aspect be taken into account?
7.16.2005 3:29am
John R. Mayne (mail):

I think the criticism of statistical use in Craig vs. Boren included the issue that 2% of males (the unlucky folk who couldn't drink beer between 18 and 21) were DUI; the court didn't like a 100% rule applied to 2% of the people. They were also concerned that the statistics were flawed, in that Oklahoma troopers in the 1970's might not be eager to arrest drunk teenage girls.

In some of the sex cases, the person is extraordinarily likely to reoffend; the "She was hot, she was 8, and she wanted me" folk are problematic and recidivist. This isn't a 2% situation, and the harm of a single sex crime vastly exceeds the harm of a non-injury DUI.

Certainly, basing ongoing incarceration based on psychiatric testimony and statistical data is an interesting and difficult question. Each state has its own parole rules (or, in California and some other states, civil commitments for Sexually Violent Predators) and its own evidentiary structure; I don't think the use of tests generally violates Equal Protection. I do, however, think if your primary source is the RRASOR, you're being lazy - there are a fair number of far more involved and more accurate and informative tests.
7.16.2005 5:21am