In an opinion issued Friday, the Iowa Supreme Court reversed an Iowa District Court judge's decision that had released him from prison. The opinion significantly strengthens the Iowa law that allows the State to keep defendant's in prison indefinitely by designating them "Sexually Violent Predators".
The State of Iowa had filed a petition to designate Bryan Pierce a "Sexually Violent Predator" (SVP) in an attempt to keep him in prison past the expiration of his criminal sentence. In a trial in Warren County, a District Court Judge had determined that Pierce should be released because the State was not able to put any current temporal connection to his likelihood to re-offend; the State only proved that Pierce was a high risk to re-offend at some future point (from 6 to 15 years after release).
The State appealed the decision. The Iowa Supreme Court ruled: (1) THAT THE STATE CAN APPEAL ADVERSE DECISIONS ON S.V.P. CASES; (2) THERE DOES NOT HAVE TO BE ANY SPECIFIC TIME PERIOD FOR A DEFENDANT TO RE-OFFEND. Both findings add to the power of the State to hold sex offenders in "treatment facilities" (read: PRISON) indefinitely.
The ruling that the State can appeal is perhaps the more significant part of this opinion even though it dealt with purely procedural issues. The Court found that the language of Iowa Code § 229A.7(5) permits the State to appeal adverse S.V.P. decisions even though the statute does not expressly give them that power. The Court justified the decision through the language of Iowa Rule of Appellate Procedure 6.1, which permits appeals of final judgments. The Court felt the language of the procedural rules trumped the fact that the statute was not specific on the State's appeal rights.
The Court then went on to the merits of the appeal and also found in favor of the State of Iowa. The Court felt the trial judge erred when he interpreted the third element that the State was required to prove to hold the defendant in custody. The trial judge found that the language that the defendant suffered a "mental abnormality makes him more likely than not to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility" had to be shown at the time of the trial. The judge ruled that while there may a risk in the future, the risk at the time of the commitment hearing was not such that Pierce should be held. The State had presented evidence that there was a high risk for Pierce to re-offend, but their expert could only say that it was at some future time, probably within 6 to 15 years.
The Iowa Supreme Court concluded that the statute only "requires the State to establish the respondent is presently suffering from a mental abnormality that makes him more likely than not to engage in sexually predatory acts in the future" and that there is "no burden to prove that alleged sexual predators are expected to re-offend within a specific time period". The fact that the defendant was currently not a risk to commit a new offense made no difference. If he was a more likely than not to re-offend at some point in the future, he had to be held in custody as a sexually violent predator.
The decision will force trial courts to determine "lifetime risk" of each particular defendant. It ignores scenarios where sex offender treatment that has been successful in treating the defendant to the point where he is currently little or no risk.
I wish that we had better terminology for sex offenses. because their threat level and likelihood of recidivism cover a very wide range. Sex offense is sometimes listed as an offense type and on occasion I see rape, forcible fondling and child molestation listed as offense subtypes. Knowing the offense subtype does provide you with a better basis for evaluating the threat and the likelihood of recidivism. However in most cases that fact that the person is a sex offender is the only information provided.
What I would like to see is a threat table where each offense subtype is listed with a discussion of the associated threat with some type of rank or score.
I would like to see a similar table for the likelihood of recidivism.
The general problem of risk assessment is that a failure of the first kind means you are not warned about a person who is dangerous and a failure of the second kind is you are warned about a person who is not dangerous. An error of the first kind about a person who then commits a heinous sex crime can destroy the credibility of what is in fact a good risk assessment instrument.
Posted by: John Neff | May 10, 2008 at 01:32 PM