Heads I Win, Tails You Lose

In an unpublished decision earlier this month, the Fourth Circuit upheld the indefinite detention of a “sexually dangerous person” under the federal Adam Walsh Act.  The respondent had argued that he was not actually dangerous, citing his admittedly low scores on actuarial risk instruments.  The instruments are the most reliable indicators of risk.  A high score is generally damning, but this decision suggests a one-way ratchet.

Citing a prior case, the court explained that every person is different, so experts also consider “age of the particular offender, his participation in treatment, his compliance with such treatment, his history of reoffending after treatment, and his commitment to controlling his deviant behavior.”  Most instruments already include age and treatment is widely regarded as ineffective, so subjective consideration of such factors almost certainly weakens predictive power.

The unpublished decision gives too few facts for a detailed analysis, but the facts it does cite are not persuasive.  No specific recent act of sexual violence is mentioned.  Rather, the court gestures at the respondent’s attitudes and “conduct reflecting ongoing preoccupation with pedophilia.”  I know the opinion is unpublished and the topic distasteful, but a man’s liberty should not be so lightly taken.

http://www.gpo.gov/fdsys/pkg/USCOURTS-ca4-12-06838/pdf/USCOURTS-ca4-12-06838-0.pdf