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SVP – Supervised Release Determination, Sufficiency of Evidence

State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Where the only witness at Brown’s supervised release hearing was an expert who supported release, and the evidence indisputably showed favorable response to treatment, the State failed to meet its burden of proof that Brown should not be released, ¶¶62-94.

A highly fact-specific result, of course, which probably hinges on the favorable standard of review; the court of appeals, by contrast, upheld non-release under a fully deferential review-regime. In short, it’s probably unwise to try to generalize; about all you can say is that there were factors both favorable and unfavorable to release, the court reviewed everything and, “Simply put, we conclude as a matter of law that the circuit court’s order denying Brown’s petition for supervised release is not supported by evidence sufficient to meet the clear and convincing evidence standard,” ¶93.One curiosity bears mention. After the opinion was released, it was modified, to add a new footnote 31, at ¶84:

Actuarial Risk Assessment tests (ARAs) estimate “‘risk’ of recidivism . . . based on aggregate or group data.” Eric S. Janus & Robert A. Prentky, Forensic Use of Actuarial Risk Assessment With Sex Offender: Accuracy, Admissibility and Accountability, 40 Am. Crim. L. Rev. 1443, 1476 (2003). In other words, “the actuarial assessment tells us the empirically measured rate of recidivism among a group of sex offenders who share a set of characteristics with the subject of the evaluation.” Id.A user of this tool must understand that the ARAs scales “must be interpreted as reporting risk without consideration of treatment or state-of-the-art supervision.” Id. at 1481.

In his report, Dr. Warner opined that one of the ARAs, the MnSOST-R, indicated that the offenders in the sample group comprising the actuarial assessment who scored above a threshold number re-offended 70% of the time within six years of release from a secure setting. The other two ARAs, also administered upon Brown’s initial commitment, measured lower re-offense rates (21.1% and 40%) for their sample groups.

Dr. Warner’s testimony cannot, however, be summarized to state that Brown has a 70% chance for re-offending (or a 21.1% or a 40% chance). The actuarial does not refer specifically to Brown or any other individual to whom the ARAs might be administered. Id. at 1477. Professor Janus and Dr. Prentky highlighted this very problem in using ARAs in sex offender cases:

We urge courts to control the language used to describe the statistical evidence. Both research and commonsense suggest that the way in which risk is communicated affects the way in which it is understood. Since risk is inherently a group characteristic, risk assessments should be ascribed to the relevant group, not to the individual defendant.. . . .

Courts should exclude testimony that directly ascribes a risk to the defendant.

Id. at 1495-96.

Is this new material non-substantive, as suggested by its sua sponte inclusion after decisional release? The text itself reads as if weightier than that. But to add to the mystery, as ¶84 indicates, Warner himself testified that the actuarials were limited to the initial commitment determination, and “were of no use in evaluating his current risk of reoffense”; similarly, the circuit court appeared to disdain reliance on the actuarials, id. In other words,the footnote is literally unnecessary. Why, that is, bother discussing instruments that weren’t even used in the event? The purpose must be didactic, to sound a note of alarm — but alarm about what, exactly?Taking the footnote at face value, the court’s intent seems perfectly clear: the court does not want actuarial instruments misused so as to reduce to a misleadingly precise percentage a given individual’s chance of re-offending. Actuarials reflect group data, and group data are not in and of themsleves a ground to detain a particular individual. But it is not merely the misuse of group data that appears to trouble the court, it is the very attempt to give a mathematically precise assessment: thus, the court quotes with approval, and therefore adopts, the Janus-Prentky view that “testimony that directly ascribes a risk to the defendant” should be excluded. And if that’s not obvious enough, the court helpfully illustrates: an expert simply can’t say that the respondent has X “chance for re-offending.”

In other words, the ch. 980 practitioner must now be exquisitely sensitive to the limits in using ARAs (actuarial risk assessment instruments). To be sure, this does not portend the end of ARAs. To the contrary. It simply means that limits are imposed on their use. And that, in turn, means at a minimum that the practitioner would be well-advised to obtain and closely review the cited Janus-Prentky article. No attempt will be made to summarize that article here, except to say that it views ARAs as equal if not superior to clinical judgments in making risk-assessment of SVPs; “in the real world of SVP cases,” the article says, “it is incoherent to ignore ARA.” 40 Am. Crim. L.Rev., at 1493. And improvident to ignore the way ARAs are used — or ought to be used, which you will find usefully discussed in the article.


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