SIST vs. Confinement: What`s an evaluator to do?

Erik N. Schlosser, Ph.D.
NYSATSA Annual Conference
May 5th, 2010
Learning Objectives
 Identify the instruments most used by experts in
Article 10 evaluations
 Identify two factors used most by judges to inform
decisions re: confinement
 Become familiar with outcome totals of Article 10 cases
in terms of SIST vs. Confinement
SOMTA Introduction:
“An act to amend the mental hygiene law, the executive
law, the correction law, the criminal procedure law, the
family court act, the judiciary law, the penal law and
the county law, in relation to the treatment,
supervision, and civil commitment of sex offenders
requiring continuing management and the criminal
punishment of sex offenders”
The legislature finds as follows:
(a) That recidivistic sex offenders pose a danger to
society that should be addressed through
comprehensive programs of treatment and
management. Civil and criminal processes have
distinct but overlapping goals, and both should
be part of an integrated approach that is based on
evolving scientific understanding, flexible
enough to respond to current needs of individual
offenders, and sufficient to provide meaningful
treatment and to protect the public.
(b) That some sex offenders have mental
abnormalities that predispose them to engage in
repeated sex offenses. These offenders may
require long-term specialized treatment
modalities to address their risk to reoffend. They
should receive such treatment while they are
incarcerated as a result of the criminal process,
and should continue to receive treatment when
that incarceration comes to an end. In extreme
cases, confinement of the most dangerous
offenders will need to be extended by civil process
in order to provide them such treatment and to
protect the public from their recidivistic conduct.
(c) That for other sex offenders, it can be effective
and appropriate to provide treatment in a
regimen of strict and intensive outpatient
supervision. Accordingly, civil commitment
should be only one element in a range of
responses to the need for treatment of sex
offenders. The goal of a comprehensive system
should be to protect the public, reduce
recidivism, and ensure offenders have access to
proper treatment.
(d) That some of the goals of civil commitment protection of society, supervision of offenders,
and management of their behavior – are
appropriate goals of the criminal process as well.
For some recidivistic sex offenders, appropriate
criminal sentences, including long-term postrelease supervision, may be the most appropriate
way to achieve those goals.
(e) That the system for responding to recidivistic
sex offenders with civil measures must be
designed for treatment and protection. It should
be based on the most accurate scientific
understanding available, including the use of
current, validated risk assessment instruments.
Ideally, effective risk assessment should begin to
occur prior to sentencing in the criminal process,
and it should guide the process of civil
Decision in Article 10 case re: SIST
vs. Confinement:
“Thus, if released on SIST, the concern is whether
[Respondent] is capable of realizing and
understanding that compliance with all conditions is
mandatory, not open to debate, and that any
failure to fully and completely comply will not be subject
to some attempted explanation or justification. Rather,
only full and complete compliance will suffice. In other
words, does he believe that he must work to avoid a
repeat of his past conduct? Or stated yet another way, is
he really in agreement that he has a real problem ("mental
abnormality") that he must work hard to control?”
Karen Franklin, Ph.D.
Sunday, October 4, 2009
SVP industry sneak peek: Problems in Actuaryland
“You psychologists and attorneys working in the trenches
of Sexually Violent Predator (SVP) litigation will be
interested in the controversy over the Static-99 and its
progeny, the Static-2002, that erupted at the annual
conference of the Association for the Treatment of Sexual
Abusers (ATSA) in Dallas.”
retrieved on 04/30/10
Three Questions:
 What are evaluators using in Article 10 evaluations?
 What are judges thinking about Article 10 cases
including criteria for SIST/Confinement?
 What’s the outcome of Article 10 cases in court?
Article 10 Expert Survey
 Sent out email to ATSA and PSYLAW list services on
03/26/10 with link to survey monkey website (41 Q’s
inc. demographic info)
 Sent to 9 NY state psychologists/psychiatrists known
to perform Article 10 evaluations on 03/29/10
 16 responses (compared to 41 responses to Jackson &
Hess survey from evaluators in 12 states)
 Jackson, R.L. & Hess, D. H. (2007) Evaluation for civil
commitment of sex offenders: A survey of experts. Sex
Abuse: A Journal of Research and Treatment, 19, 425448.
Article 10 Judicial Survey
 Sent out on 04/13/10 using email with link to survey
monkey website (14 Q’s inc. demographic info)
Email addresses of judges outside of NY city
potentially involved in Article 10 cases (98)
Sent to judges in Judicial Districts 1-9
3 stated no history of hearing Art 10 cases, 3 sent to
non-judges leaving 92 potential responders
5 responses (5.4%)
What’s the Outcome of Art 10
Art 10 Case Outcomes
3/10 DCJS Monthly Report
Art 10 Trials Completed: 111
 96 in favor of state
 29 pending decision
 55 sentenced to confinement
 12 sentenced to SIST
 15 won by respondent (No MA)
Article 10 Settlements
 Confinement: 67
 SIST: 64
 45 living in community on SIST as of 03/31/10
 # ever ordered on SIST: 82
 SIST Violation rate: 55%
 Why still use Static 99 non-revised version?
 Is there a better way of assessing volitional
impairment besides respondent self-report?
Expert Survey additional responses
re: assessment of volitional
 file reviews and historical information
 Diagnostic interview, history and documents
 Trying to understand the dynamics and precipitants of the
offenses, assessing overall levels of impulsivity, pattern of the
offenses, selection of victims, etc.
file information that suggests inability to control sexually
deviant behavior and/or his self report
behavioral patterns established through file data and self-report
file review + interview (historical and present)
it is only the functional impairment issue that is most important
to me. diagnosis is not destiny but how does the diagnosis (ses)
impact the functioning counts to me. see intro section of dsm-ivtr for use in forensic settings.
Barratt Impulsiveness Scale
State of NH v. Thomas Hurley
April 23, 2010
Daubert hearing (pages 35-36 of
For Your Consideration
“I realize that I'm generalizing here, but
as is often the case when I generalize, I
don't care.”
Dave Barry
 Mention limitations of findings or alternative points of
“The use of Paraphilia NOS as a diagnosis in civil commitment
proceedings has been criticized by many (Zander 2005) and
supported by some (DeClue 2006) with the editor of the DSM-IV
task force suggesting caution and guidelines (First & Hanlon
2008). First & Hanlon stress that the diagnosis should not be
based on behavior alone but on the basis of fantasies and
thoughts along with the offending behavior, and that other
conditions that might account for the sexually offending
behavior be excluded.”
List sources of info used in report
Articles/Publications Referenced in Evaluation
DeClue, Gregory. (2006). Paraphilia NOS (nonconsenting) and antisocial personality disorder.
The Journal of Psychiatry and Law, 34, 495-514.
First, Michael B., & Hanlon, Robert L. (2008) Use of DSM Paraphilia Diagnoses in Sexually
Violent Predator Commitment Cases. Journal of the American Academy of Psychiatry
and the Law, 36, 443-54.
Mercado, Cynthia Calkins., Schoop, Robert F., & Bornstein, Brian H. (2005). Evaluating sex
offenders under sexually violent predator laws: How might mental health professionals
conceptualize the notion of volitional impairment? Aggression and Violent Behavior, 10:3, pp.
Zander, T. (2005) Civil commitment without psychosis: The law’s reliance on the weakest links in
psychodiagnosis. Journal of Sexual Offender Civil Commitment, 1, 17-82.
If abstaining from actuarials…
“The authors of the most widely used actuarial instrument, the STATIC99 (which includes the STATIC-99R, STATIC-2002, and STATIC2002R), have produced changes in the interpretive norms at least twice
in the past two years, and continue to modify test items and norms due
in large part to the reduction in sex offender recidivism rates in the past
several years, the acknowledgment of the role of aging in the reduction
of risk for sexual reoffending, and the attempt to account for wide
variation in recidivism rates among research samples. While some
argue that the use of the STATIC-99 family of tests is appropriate in the
midst of these changes, it is this evaluator’s opinion that their use at
this time is problematic at best, and runs the risk of introducing
information that has a significant probability of requiring adjustment
in the near future. While it is the nature of psychological testing to
undergo periodic updates, the nature and scope of the recent changes
in the norms of the STATIC-99 family of tests suggests that the authors
are in the midst of an update requiring additional work, and since the
old norms no longer apply, it is prudent to withhold use of these
instruments until the author’s current research is completed,
published, and replicated.”
Contact Info:
Erik N. Schlosser, Ph. D.
Colonial Building
2 Fountain Street
Suite #110
Clinton, NY 13323-1725
phone: (315) 853-8080
fax: (315) 853-8011
[email protected]

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