On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-7-99.
Before Judges King, Coburn and Axelrad.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from a decision to admit testimony into evidence about actuarial risk assessment in a civil commitment hearing under the New Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to -27.37; L. 1998, c. 71, effective date August 12, 1999; see In re Commitment of M.G., 331 N.J. Super. 365, 371-74 (App. Div. 2000), for a review of the Act. See also John Kip Cornwell, John V. Jacobi and Philip H. Witt, The New Jersey Sexually Violent Predator Act: Analysis and Recommendations for the Treatment of Sexual Offenders in New Jersey, 24 Seton Hall L. Rev. 1 (1999).
Appellant R.S. was committed to the State's Special Offenders Unit at the Northern Regional Unit (NRU) in Kearny after a non-jury hearing at which the judge heard testimony from a psychiatrist and a psychologist appearing for the State. Both recommended that R.S. be committed for treatment, care and confinement as a sexually violent predator. The State's psychologist based her recommendation, in part, on the results of actuarial assessments bearing on R.S.'s risk of recidivism.
Because R.S. objected to the use of actuarial instruments, the judge held an evidentiary hearing before reaching a decision on commitment. After receiving testimony from experts for both sides, he held that actuarial instruments were properly admissible because they helped the court and satisfied the requirements of reliability. The judge ruled that R.S. posed a threat to the community because he had a mental abnormality which predisposed him to commit acts of sexual violence. On this appeal, R.S. raises only the issue of the admissibility of the actuarial assessment instruments. We uphold their admissibility. Our de novo review of the record establishes that the State has met its burden to demonstrate the tests are reliable for use in this context as an aid in predicting recidivism.
On September 15, 1999 the Attorney General filed a petition for the civil commitment of R.S., under the recently effective SVPA. The petition was accompanied by two clinical certificates for involuntary commitment prepared by Vivian Schnaidman, M.D., and Lawrence A. Siegel, M.D., identifying R.S. as a sexually violent predator. On September 15, 1999 R.S. was temporarily committed to the NRU until a final hearing could be conducted on the issue of his continuing need for involuntary commitment as a sexually violent predator.
The commitment hearing was scheduled before Judge Philip M. Freedman on March 28, 2000. There is no right to a jury trial under the SVPA. At that time, counsel for R.S. moved to exclude any testimony concerning actuarial risk assessment instruments utilized by the State's experts. Later, in June, a five-day evidentiary hearing was held on the issue of the admissibility of actuarial instruments in the three cases now before us, R.S., W.Z. and J.P. On July 5, 2000 Judge Freedman decided that the actuarial instruments were admissible in their own right and as the basis of an expert opinion. He ruled that R.S. qualified as a "sexually violent predator" because he had been convicted of a predicate sexually-violent offense, suffered from a mental abnormality which affects his volition making him likely to engage in acts of sexual violence, and should be confined for treatment. N.J.S.A. 30:4- 27.26.*fn1 Judge Freedman entered a judgment on July 6, 2000 committing R.S. to the NRU and scheduling an annual review hearing for June 14, 2001.
We first review R.S.'s prior criminal history. R.S., born December 14, 1967, has a significant history of sexual assault on prepubescent boys, under the age of thirteen. In 1989, R.S. sexually assaulted D.G., his male cousin, age nine, by digitally penetrating his anus and exposing his penis to the victim.
R.S. was arrested on February 1, 1989 in Passaic County for that offense and charged with aggravated criminal sexual contact. In a sworn statement at the time of his arrest, R.S. stated he was under the influence of alcohol when he sexually assaulted D.G. and when he was drinking he became "turned on" by the sight of young boys. On April 28, 1989 R.S. admitted his guilt to the sexually violent offense against victim D.G. On June 15, 1989 R.S. was evaluated at the Adult Diagnostic and Treatment Center (ADTC). At that time, R.S. admitted his first incident of sexually aberrant behavior occurred in 1987 when he exposed his genitals to his cousins in the basement of his home. He also acknowledged his behavior was wrong; he said when he was under the influence of alcohol, he behaved in a sexually inappropriate manner. He was diagnosed as a repetitive and compulsive sex offender eligible for sentencing to ADTC pursuant to the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. On August 2, 1989 R.S. was sentenced to a five-year probationary term for the sexual assault of D.G. As a condition of his probation, mandatory substance abuse treatment and mental health treatment was ordered.
R.S. was again convicted of a sexually violent offense on July 22, 1993. He sexually assaulted four boys, between the ages of nine and twelve, on repeated occasions between September 1990 and November 1991. He committed these sexual assaults while on probation for the earlier sexual assault of D.G., age nine. R.S. lured the four young boys into his home to play Nintendo games. R.S. then played wrestling-type games with the boys during which he fondled their genitals and buttocks. He also exposed his penis to the boys and masturbated in front of them.
R.S. was arrested on November 12, 1991 and charged with ten counts of second-degree sexual assault and four counts of third- degree endangering the welfare of a child. On September 21, 1992, pursuant to a plea agreement, he pleaded guilty to four counts of second-degree sexual assault. According to the May 17, 1993 pre- sentence evaluation, he admitted to a long history of sexual attraction to young boys and his own victimization at age twelve. In describing his sexual assaults of the four boys, R.S. admitted he realized that what he was doing was wrong but was unable to stop himself; he stated, "I would say to myself, 'It's wrong.' But it didn't seem to work."
On July 22, 1993 R.S. was sentenced to a seven-year prison term with a five-year mandatory minimum. After evaluation, R.S. was ordered to serve his sex offender's sentence at ADTC. On October 15, 1993 R.S. pleaded guilty to a violation of the terms of his probation on the first sexually violent offense and was sentenced to a four-year term of incarceration, concurrent to the sentence on the later convictions.
During his incarceration at ADTC, R.S. was subject to six disciplinary charges including refusing to obey an order, threatening a staff member with bodily harm, assault, conduct which disrupts, and misusing electronic equipment. As a result of these disciplinary sanctions, on September 23, 1997, he was transferred from ADTC to East Jersey State Prison for a period of administrative segregation. On March 31, 1998 he returned to ADTC, served out his maximum sentence, and was released in September 1999.
At the SVPA commitment hearing, the State presented testimony from two experts, Dr. Stanley Kern, a psychiatrist employed by the NRU, and Dr. Jennifer Kelly, a staff psychologist at the NRU. R.S. did not present any witnesses at this final commitment hearing; however, he did present three expert witnesses at the evidentiary hearing on use of the actuarial evidence.
Kern's diagnosis was pedophilia, alcohol abuse and borderline mental retardation. R.S. was currently taking Prozac, to control compulsive behavior; Lupron, to reduce sexual desire; and Thorazine, to relieve anxiety. While Kern acknowledged that R.S. had undergone eight years of therapy, he had only recently become more involved in treatment at the NRU. R.S. still had a "impulsive control" problem and "certainly" needed treatment and confinement. Kelly testified that she prepared an evaluation of R.S. based upon a review of his treatment history, criminal record, and standardized testing, as well as her personal observations of R.S. in group sessions and a clinical interview. Kelly also administered the Minnesota Multi-Phasic Personality Inventory (MMPI-II) and scored four actuarial risk assessment tools
the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), the California Actuarial Risk Assessment Tables (CARAT), the Registrant Risk Assessment Scale (RRAS), and the Rapid Risk Assessment of Sex Offender Recidivism (RRASOR). Kelly said that the results of the MMPI-II were consistent with an individual who is impulsive, easily frustrated, angry, hostile and in some ways antisocial. On the actuarial instruments, R.S. fell into the high-risk range on the MnSOST-R, the CARAT, and the RRAS, and into the moderate-risk range on the RRASOR. Kelly stated that R.S. has acknowledged that he currently has deviant sexual fantasies involving children, but he claimed that he has tried to change his fantasies of children to fantasies of adult males. However, Kelly could not be sure of the truth of his statement because R.S. was not completely forthright on the psychometric testing. She concluded in her forensic psychosexual evaluation of March 27, 2000 that R.S. is at "high risk" to reoffend and should remain at the NRU for continued sex offender and substance abuse treatment.
Kelly testified at length about the actuarial risk assessment instruments she used in her evaluation. Research discloses, she explained, that clinical judgment alone has been considered inadequate to make a determination of which sex offender is going to recidivate and which is not. Individuals working in the field of sex offender risk assessment have developed actuarial tools to aid in making predictions of future dangerousness. This is done by studying those sex offenders who recidivate to see which risk factors they have in common. Through statistical tests, the factors which repeat most often are identified and used to create the actuarial instruments.
Actuarial instruments mainly measure static factors, which Kelly explained are historical facts about the offender which do not change. Once a subject's record is reviewed and an instrument is scored, the results are then adjusted based upon the evaluator's clinical judgment of the subject's dynamic factors. Dynamic factors are factors which change over time, such as an individual's treatment progress, his attitude, and his arousal patterns. Kelly stated that dynamic factors are much more difficult to measure than static factors; they are subjective and they can vary from day to day. Kelly discussed the nature of each actuarial instrument she used, its validity and its reliability. Kelly's testimony in regard to actuarial instruments was entirely consistent with the testimony of the other State experts.
Dr. Glenn Ferguson, a psychologist employed as the clinical director at the NRU, was the first witness to testify on behalf of the State at the evidentiary admissibility hearing on the actuarial instruments relied upon by the three cases before us, R.S., W.Z., and J.P. He obtained a Ph.D. in 1997. His Ph.D. dissertation was "a validation study of the Registrant Risk Assessment Scale." Ferguson explained that the NRU uses an adjusted actuarial approach to evaluate a sexual offender's risk of recidivism. This consists of comparing actuarial instruments, psychological testing, clinical interviews and clinical observations to see when there is agreement to support a clinical diagnosis. Use of these different scales is "state-of-the-art" in the field of sex offender risk assessment because it minimizes the weaknesses inherent in any one single test.
Ferguson discussed each of the recently developed actuarial instruments used at the NRU, beginning with the CARAT. The CARAT is a purely actuarial measure developed by looking at the characteristics and personality traits of about 500 California sex offenders who had been released into the community after completing a treatment program. Comparing traits among those who recidivated, researchers derived a table very much like the actuarial tables insurance companies use to set rates. Because this is purely an actuarial measure, it does not consider dynamic factors which might contribute to an individual's recidivism. The California researchers who developed the CARAT did a validation study on the instrument which was favorable. A validation study looks at the ability of an instrument to measure what it purports to measure ÄÄ in this case, to correctly classify individuals into different risk factors for recidivism.
Ferguson testified that the original MnSOST was a clinically- derived measure in which Minnesota researchers took factors which research had shown as significant indicators for sexual recidivism and scored them, based on clinical judgment, on which were most important. The researchers then refined the scale through factor analysis and validity studies to come up with a more statistically valid approach, the MnSOST-R. The MnSOST-R is empirically based but is one of the few actuarial instruments which attempts to capture dynamic factors, such as an individual's participation in treatment. The MnSOST-R has been validated and cross-validated with good results. Ferguson explained that the difference between a validation study and a cross-validation study is that a validation study is done using the same population that was used to develop the test while a cross-validation study looks at an entirely new set of individuals.
Ferguson described the RRASOR as an empirically-based instrument designed after a meta-analysis study by two prominent researchers in the field. A meta-analysis study is a study in which researchers look at several different studies at the same time ÄÄ in the case of the RRASOR about 100 studies related to sex offender recidivism ÄÄ and come up with a set of factors that are significant in all of them. The RRASOR consists of only four factors, all of which are static. He said that it has been validated and possibly cross-validated as well.
Concerning the Static 99, Ferguson stated that it is an improvement of the RRASOR, just as the MnSOST-R is an improvement of the MnSOST. The Static 99 was not scored for R.S., but it has been used in other sex offender commitment hearings. At the request of the Public Defender, the trial judge here considered the admissibility of the Static 99 along with the other actuarial instruments at R.S.'s evidentiary hearing. The Static 99 was developed by a British researcher who combined the RRASOR with statistical instruments used in Britain and Canada. A strength of this instrument is its utility in predicting violent recidivism as well as sexual recidivism. Although it does not capture many dynamic factors, it does consider substance abuse. The Static 99 has been validated.
Finally, Ferguson discussed the RRAS, an instrument developed by clinicians and legal experts in New Jersey after the enactment of "Megan's Law," The Registration and Community Notification Law, N.J.S.A. 2C:7-1 to -11, as an objective way of assigning tier classifications to sex offenders prior to release into the community. Ferguson was a member of the group which did the validation study on the RRAS. The RRAS is a clinically developed scale, based upon a 1995 review of the literature. One of its strengths is the inclusion of several dynamic factors such as progress in treatment, community support, employment, and substance-abuse treatment. However, Ferguson admitted that because the RRAS is not empirically derived it is "on the lower end of the preference scale" and is not in the same league as the MnSOST-R or Static 99.
Ferguson also testified that even though these actuarial tools were designed for specific regional populations (the CARAT was developed for use in California), they are equally applicable to any sex offender population. Evidence for that statement comes from the meta-analysis where studies from all over the world were considered.
Ferguson also stated that an "overwhelmingly" large number of research studies support the use of static facts over the use of dynamic factors for making sex offender risk determinations. One great advantage to using actuarial instruments is that by assigning specific weight to specific factors they standardize clinical assessments by ensuring that different clinicians arrive at basically the same result. Ferguson explained that "inter-rater reliability" as applied to a risk assessment tool refers to its consistency
whether two different scorers will arrive at the same results for the same individual. Usually, the largest factors contributing to inconsistency are improper training and access to different information. The inter-rater reliability for the MnSOST-R, the RRASOR and the Static 99 are all fairly high with the Static 99 the best.
Ferguson admitted that many of the same people who created the assessment tools did the reliability and validation studies, but explained that this was because most of the instruments have not been in use long enough for peer review or replication studies. Although there are no formal testing manuals for the instruments, there are articles, technical instructions and materials on the Internet to aid the evaluators. And, there are numerous workshops around the country which offer training from the instrument developers themselves.
When asked about the correlation coefficients for the instruments, which represent the degree of agreement between the factors being considered and recidivism, Ferguson stated that they are generally in the 0.20 to 0.30 range, with the Static 99 being the best at around 0.40. While these coefficients may not seem high to the uninformed observer, he said that in the field of medicine anything over 0.15 is statistically significant. The range of .20 to .30 is much better than random chance or guesswork.
Ferguson explained it is important to understand that actuarial instruments are not predictive with regard to any particular individual; they can only indicate within what group the individual falls. In other words, an actuarial tool can say that a particular individual has characteristics similar to other individuals in a group that recidivates 70% of the time, but it cannot say that a particular individual has a 70% chance of recidivating. For this reason, actuarial instruments are not considered true psychological tests of the person. A psychological or "psychometric" test measures a personality or cognitive construct, such as I.Q., which is a unique characteristic of an individual and provides information specific to that individual. An actuarial instrument, on the other hand, measures impersonal historical factors to reach a result not predictive for a particular individual. Therefore, Ferguson said, test development standards applicable to psychometric tests do not apply to actuarial instruments. Dr. Dennis Doren also testified on behalf of the State.
Doren is a psychologist who has been involved in sex offender treatment in Wisconsin since 1983 and in sex offender risk assessment there since 1994. He explained there are basically five types of sex offender assessment procedures. The first is unguided clinical judgment; this is simply the opinion of a psychiatrist or psychologist who has no preformed set of ideas of what factors contribute to risk. The second is guided clinical judgment where the clinician has some fixed or articulable ideas of what risk factors are important, perhaps based on experience or theory. These first two methods have been used in routine civil commitment proceedings in New Jersey. The third procedure is research guided clinical judgment in which the clinician considers factors that research has shown as important. The fourth, which is the method used by the NRU, is the clinically-adjusted actuarial assessment in which the clinician starts with a statistically-based formula and makes clinical adjustments according to the specific details of each case. Finally, there is the pure actuarial method which uses statistical formulas without any clinical adjustment.
Of these methods, Doren said, research-guided clinical judgment and clinically-adjusted actuarial assessment are the most often used in the field of sexual offender risk assessment. The difference between the two approaches is the weighting of the risk factors. In research guided clinical judgment the evaluator knows what factors are important but not how much weight to give one factor relative to the others. By using statistics, the actuarial approach standardizes how much weight is given to each factor.
Doren testified that there are currently about 150-175 experts nationwide in the field of sex offender risk assessment and most employ the clinically-adjusted actuarial assessment method. At the time of his testimony, June 16, 2000, fifteen states have sexually violent predator (SVP) laws, and only two, Texas and Massachusetts, do not use actuarial assessment tools. In July 1999, Doren surveyed the thirteen states which employ these instruments to determine which were most used for risk assessment. He discovered that the RRASOR was used by most of the evaluators in all thirteen states, the MnSOST-R was used in ten states, the CARAT was used only in California, and the RRAS was used only in New Jersey. Although the CARAT and the RRAS are not frequently used, the underlying principle of both is generally accepted.
Doren stated that the clinically-adjusted actuarial method is the most accurate method for risk assessments. Research has shown that actuarial analysis is at least as efficacious as clinical judgment and often better. This is because clinicians are often not systematic in their data gathering or in their memory. A study in Canada showed that clinicians tend to overestimate violence of all types, including sexual violence, so that unguided clinical judgment tends to come up with higher assessments of risk than does the actuarial process. By restricting and structuring clinical judgment, actuarial instruments produce more refined and accurate results.
In Doren's opinion, the order of the instruments from best researched to least researched is the Static 99, the RRASOR, the MnSOST-R, the CARAT and the RRAS. However, he also said that the instruments currently in use are not comprehensive enough in terms of the factors they consider and in terms of the type of outcome they measure. The greatest shortcoming of the instruments is that they do not adequately consider dynamic factors.
Doren also acknowledged it is a misuse of the instruments to say that a person with a certain score has a specific risk of recidivism. Rather, it is proper to say that a person with a certain score is in a group that has been shown through research to have a specific risk of recidivism. Misuse of the instruments can be avoided by reading the documents which describe how to interpret the results, receiving training from someone knowledgeable about the instruments, or consulting with another professional aware of the information. Finally, Doren agreed with Ferguson that actuarial instruments are not psychological tests ...