Academic journal article Case Western Reserve Law Review

"The Strings in the Books Ain't Pulled and Persuaded": How the Use of Improper Statistics and Unverified Data Corrupts the Judicial Process in Sex Offender Cases

Academic journal article Case Western Reserve Law Review

"The Strings in the Books Ain't Pulled and Persuaded": How the Use of Improper Statistics and Unverified Data Corrupts the Judicial Process in Sex Offender Cases

Article excerpt

CONTENTS  INTRODUCTION  I. HOW COURTS RELY ON INACCURATE STATISTICS  II. ON SHAME AND HUMILIATION     A. Shame     B. Humiliation III. HOW THIS VIOLATES THERAPEUTIC JURISPRUDENCE CONCLUSION 

INTRODUCTION

We begin this Article by sharing something about our past legal practice careers, as we believe that is so relevant to the topic that we focus on in this Article. When Michael L. Perlin was a rookie Public Defender in Trenton, New Jersey, in the early 1970s, he regularly visited the Menlo Park Diagnostic Center where some of his clients--those who had been found, in the phrase used then, to be "repetitive and compulsive" sex offenders--were housed. (1) When Heather Ellis Cucolo was a rookie Public Defender in Newark, New Jersey, in the late 2000s, she regularly visited the Special Treatment Unit ("STU"), attached to the state prison in Avenel, New Jersey, where some of her clients--now classified as sexually violent predators--were housed. (2) When the two of us talked about our experiences during the latter years, we were stunned at the similarities that we found: almost no meaningful treatment of any sort, prison-like conditions, and a population comprised of a minority of people whom we agreed posed a significant danger to the community but a majority of whom had committed crimes involving no personal contact. (3)

As we discussed our experiences further, we both inevitably focused on the topic at the heart of this Article: the way that improper statistics and unverified data has contaminated the "debate" surrounding the post-conviction treatment of sex offenders--whether in Facebook discussions or in U.S. Supreme Court cases. We believe we have an absolute obligation to call out those who distort the evidence and create a false consciousness in this area, be they TV news pundits or Supreme Court justices. (4) We use the word "corrupts" in our title consciously because we believe that what has resulted is the corruption of the judicial process. (5) Our thesis is simple--an examination of a range of judicial decisions involving sexual offender determinations reveals that, frequently, courts rely improperly on inaccurate and underdeveloped statistics as well as unverified and outdated information. This reliance, too often, underlies rulings that subject the sex offender to significant sanctions and loss of liberty. Additionally, the continuation of the testimonial script that all sex offenders are high recidivists, dangerous, compulsive, and untreatable contributes to the anti-therapeutic effect of shaming and humiliation. (6) This narrative results in isolation, seclusion, and lack of dignity; also, it further trivializes the judicial process and violates the tenets of therapeutic jurisprudence. We will consider each of these, and we will look at all of this through the filter of the Supreme Court's decision in McKune v. Lile, (7) a case decided sixteen years ago that is now beginning to resurface in new, critical literature that has deconstructed the case's basic fallacy in ways that we hope will stay at the forefront of this debate for the coming years. (8)

We argue here that, in fact, the "strings in the book" are "pulled and persuaded" (9) so that judges do not have to deal with the reality to which they willfully blind themselves. (10) The premises of judges' decisions related to the assessment of who is a sexually violent predator are built on houses of cards that could and should crumble quickly if we dispassionately examine the underlying statistics and data. A recent article critiqued the teleological way that courts interpret biologically-based evidence in a range of criminal procedure cases so that they can end up with the result that, a priori, they want to reach. Indeed, "judges..., like the rest of us, are subject to an incessant media barrage of media hysteria on questions of whether sex offenders are likely to recidivate." (11) We believe that it is impossible to make sense of the law or the science in this volatile area of law and policy until we come to grips with this reality. …

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