Thursday, January 7, 2010


This continues my look at the California Sex Offender Management Board’s Report. The text is here.

Don’t forget the page-numbering system: the first number is the Adobe browser number and the second is the page number of the actual text.

Section 3 deals with Sex Offender Recidivism and it is here that the Report, I would say, makes its most worthwhile contribution to accuracy and sanity.

This Section of the Executive Summary begins, as always, with “Data”, and they are striking (15/9). “3.55% of sex offenders on parole [in California] had committed new sex offenses by the time of the conclusion of their three-year parole period”. This is a thought-provoking number, and in light of what usually passes for recidivism figures it’s stunning. I could only wish that “committed” had been more precisely broken down into ‘charged with’ or ‘convicted of’, but that doesn’t detract substantially from the 3.55 figure.

Further, “A ten-year follow-up study of 879 sex offenders in the state of Ohio reported that when using sex offense conviction as the outcome measurement, of 34% of sex offenders who have re-offended, only 8% were re-committed for a new sex crime, plus 3% for a technical violation judged to be related to the new sex crime, while the other 22% re-offended for non-sexual offenses”. And this figure also stuns, in a good way.

It’s heartening to see that the Report penetrates to the factual-heart of the matter by focusing on ‘sex offense conviction’ as the standard of measurement, rather than on the less informative ‘arrest’ or ‘charged with’. And the figure is 8%: that’s a pretty decent re-offense rate compared to all other types of crime (and criminal offender).

Additionally, there was another 3% re-confined for “technical violation”: again, this is an excellent distinction to make, since “technical violations” are simply a violation of those myriad residence and other ‘regulatory’ and ‘non-punitive’ restrictions that have been larded on like frosting over the course of the years since the mid-1990s, and especially since the Supreme Court cleared the way for intensified mania with its Smith v. Doe decision in 2003. You may recall one fellow who was re-arrested because in moving from one house to another in order to comply with the latest residency restriction, he spent a night in a motel and was then arrested when he went to register his new address, because he hadn’t ‘registered’ the motel address (for the one night he spent there).

In order to ‘keep the numbers up’ the mania usually doesn’t make this distinction, which in this case would have yielded a ‘recidivism’ rate of 11% (and every little bit helps in a mania).

And you cannot help but imagine that even for former sex offenders who commit further non-sexual crimes, there is no small possibility that a former offender who is faced with the daunting challenge of trying to rebuild a life having been ‘tagged’ by the sex offense mania cannot manage to hold everything together. I’m going to think that a percentage of that 22% who committed further, non-sexual crimes were under the intense and continually intensifying pressures imposed by restrictions of all sorts, imposed now even by towns and municipalities.

And of course, the Adam Walsh Act is going to increase the ‘technical offenses’ exponentially since a long-ago convicted sex-offender may now be liable for registration under a direct Federal requirement, even though his State doesn’t require his registration. I recall a recent court decision (valid, if I recall correctly, only in that Federal District or Appellate region) that makes AWA registration mandatory even if the State in which the ‘eligible’ offender resides has not yet (and may never) adopt and accept AWA.

The Report states with laudable directness: “Solid information about the recidivism of sex offenders is one of the key building blocks for good policy and effective practice in sex offender management. If it were not for the concern that an identified sex offender may offend again in the future and create another victim, the questions about how to best manage sex offenders living in California communities would not be of such intense interest” (15/9).

Well yes, yes, and yes.

The lack of solid information – or even the desire for it – has done a great deal to impeach the credibility not only of sex offense legislation but even of the legislators (and jurists) who create and uphold the matrix of mania law. Yes, the AWA – after a decade or more of sex-offense law – finally calls for ‘study’, but only ‘study’ about the effects of the law, not about the validity of the Findings upon which AWA and the entire matrix of mania law rest.

And as even this Section has just revealed in its ‘Data’, recidivism is stunningly low, especially if that excellent distinction is made between a ‘new’ sex offense, a ‘technical’ violation, and conviction for unrelated and non-sexual offenses.

And of course, since almost 90% of reported sex offenses are committed by ‘first offenders’, who by definition are unknown to the system, then ‘management’ is only going to affect 10% of offenders. And while you can then say that over time more and more offenders will be ‘identified and tagged’, it’s clearly going to take a lot of time and a lot of money, and all of those resources poured into an almost chaotically mis-conceptualized and wrongly conceived quasi-phenomenon.

BUT THEN the Report goes on to assert, and rightly so, that if it weren’t for the danger of recidivism, then the post-confinement and supervision of sex-offenders would – nicely put – “not be of such intense interest”. And how! The entire public sex-offense anxiety that fuels the mania would lose its ‘grounding’, such as it is. (Of course that’s not to say that the sex offense mania would then disappear overnight; let’s face it: the effects of almost 2 decades of government-supported media sensationalism, even though based on shocking inaccuracies, are not going to go away overnight.)

Tactfully, the Report reasons rightly that if the citizens know the ‘likelihood’ of an offender re-offending then that ‘knowledge’ “can drive many decisions”. But of course, such knowledge really is ‘knowledge’: there’s no way of knowing because a) you can never really know the future with any human being, and b) because the ‘sex offense’ problem at its very core is such a primal hash of exaggeration, untruth, and anxiety-fueled imagination and speculation. (I wonder when somebody is going to get around to the very real problem of how to manage and rehabilitate ‘the public’ after all these years of being soused with all this mania madness.)

Especially since many of those “decisions” are not simply government or public policy and law decisions, but rather private citizens’ decisions made under the deforming pressure of the mania: to avoid ‘sex offenders’ and their families, to get ‘them’ out of the neighborhood, and so on.

The Report veers back a bit, though acceptably, by stating that “knowing what interventions might actually reduce the chances that a sex offender will re-offend is also extremely important”. Which is technically and procedurally true. But since the phenomenon of ‘sex offense’ is so conceptually confused, then it is going to be extremely difficult to come up with rational and effective responses, whether through public policy and law or through therapeutic treatment.

Indeed, reflecting that hash, most citizens simply take the low road and quietly decide to simply ‘avoid’ and ‘get rid of’ sex-offenders (and often their families) as decisively and simply as possible (which usually includes ‘as primitively as possible’, and that is one of the lethal consequences of this mania for public and civic and societal life in this country). Let’s not forget: the instances of violence against sex-offenders and even their families are grossly under-reported; and this is especially true if you include the emotional violence of rejection, obloquy, and verbal harassment, let alone more formal consequences such as being fired from a job or rejected by a potential employer.

The Report continues (15/9): “Existing data indicates that the majority of sex offenders do not re-offend sexually over time (Harris & Hanson, 2004)" [italics mine]. It goes on (16/10): “Additionally, research studies over the past two decades have consistently indicated that recidivism rates for sex offenders are, in reality, lower than the re-offense rates for most other types of offenders”[italics mine].

This, and several other studies quoted in this Section, clearly establish – in the Report’s estimation – that the already-acknowledged key factor of ‘recidivism’ is very low among ‘sex offenders’. This is remarkable because it would seem that the Report is clearly undermining the entire purpose of CASOMB’s existence. And you don’t often find that in public documents, especially government-established Boards created for the purpose of ‘dealing with’ this or that problem.

Of course, the SO community can only give thanks and take heart that this Report is willing to use its authority and status to stand up for some truth and accuracy in this entire mania area.
But what is going on here?

I think that – government being what it is – no Board would take such a position unless it had the quiet and prior approval of crucial elements within the government (in this case, of the State). And this is especially true when the Board is so clearly weighted in a certain direction by the appointment of prestigious victim-advocacy types as Chair and Co-Chair.

Which leads me to conclude that while making all the necessary noises to maintain its creds among the ‘victim community’, this Board, with the tacit approval of a grievously cash-strapped State government and many of the Agencies involved, is trying to dial back the mania to a level where there is at least some modest hope of sustaining a ‘management’ program at all.

In other words, I think that what you can see here is a real attempt to dial-back the mania, by embracing actual and factual and evidence-based knowledge and information (precisely the tack NOT taken for the past 20 or so years by governments, legislatures, too many courts, the media, and the panoply of ‘organizations’ – volunteer or for profit – that have grown up around this monstrous thing).

And when I say that I am not belittling the Report. I think it represents a very significant development: government – surely under the unspinnable pressure of serious cash shortfalls – is starting to reach out for genuinely accurate information in order to get some control over the wildly unbalanced dynamics spiraling - expsensively - out of control.

Yes, genuinely accurate information will have that marvelous effect of keeping things from spinning wildly and madly off into crazy directions; that, I would say, is why such information was avoided by ‘advocates’ and enablers and instigators of this thing from the get-go.

And yes, it would be nice to think that ‘truth’ is so widely prized among Us that a simple desire for it would have kept things on the straight and narrow. But human nature is human nature and consequently life is what it is. It has taken a good rap on the snout from implacable fiscal realities to start the correction process. But so it was with the Salem Witch Trials, where the government in Boston – fearful for its reputation back in London – saw the medieval outbreak of judicial blood-shedding in Salem as being far too dangerous to be permitted to continue. And the mania subsided.

And I will also add that there had always been, even in Salem, a number of folks who had never accepted the validity of the witchcraft mania and its ‘trials’. And that very few citizens objected once they had calmed down – and began gingerly conducting public affairs in that ‘morning after’ mode so often seen on New Year’s day as last night’s party-goers start to sober up and try to make their way along snowy paths to carry on the normal affairs of life, studiously avoiding the mess and wreck that they had caused the night before when they were in 'party mode'.

Among “Gaps” requiring attention in the State, the Report (16/10) especially notes that “the operational definition of ‘sex offender recidivism’ used in any future California recidivism studies needs to be standardized to improve the accuracy and comparability of the data”. Well, yes indeed! And that would be a requirement in any Introductory course in Statistics and Research in any college in the country. But it’s a clear indication of just how far off balance this entire mania has been from the get-go that such a simple, almost elementary, requirement was ignored, and indeed purposely and repeatedly violated.

(Which I would say leads to a handy Rule of Thumb for Citizens: any ‘progress’ or ‘reform’ which requires the suspension or violation of elementary procedures for establishing truth must be considered with a verrrry skeptical and gimlet eye. Because such violations are the clear warning signs of developing public mania, not only among the Citizens but among the agencies and branches of government themselves.)

But just so you don’t go popping any corks, the Report then asserts that “Little is known about the extent to which recidivism rates climb after the period of formal supervision and control under the authority of the criminal justice system (parole and probation) ends …”(16/10). Well, it is already established that 90% of sex offenses are committed by first timers, so there may be that 10% - roughly – who re-offend.

Although you then have to consider just what ‘offense’ they commit, since as is well established, there are now a whole lotta things that are swept up into the definition of ‘sex offense’ and ‘sexual assault’ and ‘molestation’, far beyond what one might imagine in ‘rape’, ‘attempted rape’, and crimes against ‘children’. *

But then the Report sounds something of the old music: those sex offenders no longer under the authority of the criminal justice system are described in the text as “simply living in the community as “free” citizens” ... [air quotes in the text itself].

And this, I think, is revealing, and unhappily so. The Report indulges in the old but ominous implication that former sex-offenders are somehow still dangerous, that they are only diabolically and evilly mimicking the appearance of a decent citizen, and that they – though former offenders, and perhaps for decades – have no right to be or to be considered “free”. I don’t think it’s hard to see just what a grossly inaccurate but also Constitutionally lethal and toxic dynamic this represents, fracturing the civic polity and society, and creating the beginnings of what Giorgio Agamben calls homo sacer**, the individual who by government declaration is subject to the laws but no longer protected by them.

So this Section gives the SO community cause for substantive hope, although it also reminds everybody just what lethal stakes are still involved in this mania.


*In the past two days I read a news story about a police officer who was arrested for burning the pelvic area of a female toddler, somehow related to him, with a hot iron. He was arrested for rape of a child, if I recall correctly. It seems to me that such a shocking and reprehensible act has little to do with ‘sex’ and much more to do with a violent and aggressive assaultiveness – whatever its causes – in the perpetrator. That such a crime is primarily considered as a ‘sex offense against a child’ strikes me as being conceptually a misclassification (although as a prosecutorial strategy, given the stringencies of child-sex-offense laws, a shrewder charging-decision).

**See my Post of 12/31/09, “Carl Schmitt and Sex Offenses” on this site.

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