Tuesday, November 20, 2007

OH - Sex In The Time Of Hysteria

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11/21/2007

Ohio's Efforts To Get Tougher On Sex Offenders Could Backfire

It's been 10 years since Ohio started registering sex offenders, notifying neighbors when they move nearby and putting their pictures on sheriffs' Web sites.

Has the program improved public safety? No one knows. The state has never studied the results of this relatively new and controversial approach to crime prevention. But that hasn't stopped the Ohio General Assembly from passing a much tougher version of the law, requiring even more people to register as sex offenders, and for longer periods.

The new law, which took effect July 1, won unanimous approval in the Ohio Senate. But there are serious questions about whether legislators even knew what the law would require. Passed under pressure from the federal government, the law creates a classification system so severe that some juveniles convicted of sexual misconduct could be branded as sex offenders for the rest of their lives.

But far from enhancing public safety, some policy analysts say, the new law could backfire - making it harder for former offenders to stay out of trouble and making it more difficult for victims of sexual abuse to get help.

How did the law make it so easily through the legislature?

The first answer is politics.

"The climate right now is so punitive around what to do with people who commit sex offenses," says David Singleton, executive director of the Ohio Justice and Policy Center (ohiojpc.org). "Elected officials don't care that these new changes are going to impose incredible hardships on certain individuals. They don't care, frankly, that maybe these registries don't do any good any way ... because no one wants to come out and look like they're the friend of a sex offender.

"You've got plenty of people in the legislature in the state of Ohio who hold their noses and vote to approve these very punitive restrictions that we're seeing on sex offenders. They know that it's bad policy, but they do it anyway because they can't take the political risk."

There was a second reason legislators were motivated to pass the new law: Federal money was involved.

The law brings Ohio into compliance with the federal Adam Walsh Child Protection and Safety Act. While the federal government can't force states to enact laws, it can create financial "incentives" for states to adopt them. In this case the incentive was a 10-percent bonus in grants created by the Walsh Act if Ohio enacted the law by July 27. States that don't pass the law by 2009 will face a 10 percent cut in other federal grants.
- It's called Bribery, which is a crime!

But the Ohio legislature rushed for nothing. Congress hasn't acted to fund the bonuses in the first place, according to Amy Borror, spokeswoman for the Office of the Ohio Public Defender. "Congress hasn't actually appropriated any money for that so, as of right now, it's 10 percent of zero," she explains. "Even if there were money, even if it were $1 million or $2 million, that pales in comparison to the cost of implementing this."

The registration system Ohio adopted in 1997 was risk-based - that is, the law required judges to hear evidence about whether a sex offender was a threat to repeat his or her crime. Judges heard testimony from psychologists, law enforcement officials and others, then put offenders into one of seven categories. Some had registration requirements ranging from 10 years to life, and others involved no registration.

The new law scraps the risk-based classification system. Now judges are required to place sex offenders into one of the three tiers defined in the federal law. The new classifications are solely based on the type of crime instead of on the risk of re-offending.

Having three classifications instead of seven simplifies registration - but maybe too much so. It certainly won't help people understand the complexity of the crime. The system isn't even truthful, applying the tag "sex offender/child-victim offender" to people in all three tiers - even if the victim wasn't a child at all.

The lowest classification is "Tier I sex offender/child-victim offender," requiring 15 years on the registry. Tier I can apply to anyone convicted of a host of crimes, ranging from voyeurism to unlawful sexual penetration with a victim under the age of 4.

"Tier II sex offender/child-victim offender" has a 25-year registration requirement and applies to compelling prostitution, kidnapping a victim 18 years or older with the intent to engage in sexual conduct, and other crimes.

"Tier III sex offender/child-victim offender" requires lifetime registration; some of the crimes under this classification include rape and involuntary manslaughter when attempting to commit a felony with sexual motivation.

Many people who learn a neighbor is a convicted sex offender assume he or she molested a child. The language of the new three-tier system will reinforce that myth. But kids aren't always involved.

Tammy Welton of Southwest Ohio is an example. While working as a prison guard, she had consensual sex with an adult male inmate. She was charged with five counts of sexual battery, pleaded guilty to two, and was sentenced to six months in prison and three years' probation. The judge also ordered her to register with police once a year for 10 years.

Welton has been on the registry for six years, and a therapist's evaluation said that she is unlikely to offend again (and it would be virtually impossible: As a convicted felon, she can never work for, or even visit, a prison again). But as of Jan. 1, 2008, under the new law, she'll become a lifer: a Tier III sex offender/child-victim required to register for the rest of her life.

"Yes, I did a crime," she says. "I don't deny it, but I am definitely not a threat to the general public ... Now, with the new law, I am considered worse than someone who may kidnap your children for use in prostitution."

Worse, the great simplification of the sex offender registry could actually let more serious sex offenders off more easily, says Singleton of the Ohio Justice and Policy Center.

"If there's a dangerous sex offender who the government can show is a dangerous sex offender who commits a gross sexual imposition - which is not a Tier III offense - wouldn't you, as a citizen, want to see the court sort of wrestle with the question of whether this person is dangerous or not and put them in the tier according to that, rather than just relying on the label of the crime they were convicted of? It's a cookie-cutter approach that doesn't tell you who's dangerous."

And SB 10 is retroactive, applying even to people whose sentences long ago expired. "It is fundamentally unfair to change the rules this way," Singleton says. "They've done their time. They've been punished."

Perhaps the most pernicious aspect of the new law is that children are now subject to the same classification system as adults.

SB 10 dismantled the recently established Juvenile Sex Offender Registry and Notification System. Any kid 14 or older found guilty of a sex offense will now be classified in Tier I, Tier II or Tier III. So a 14 year old who inappropriately touches a younger child could be forced to register as a sex offender for the rest of his or her life.

That's the opposite of progress, says Bryan Brown, assistant executive director of the Ohio Associations of Child Caring Agencies (OACCA).

"Ohio, surprising though it may be, has the best juvenile justice system in the country, and one of our repeated messages to the legislators was, "Let's not disrupt what we've taken so long to build,'" Brown says. "It's far from perfect, but it has been a fairly successful system.

"Juvenile judicial discretion has been a fundamental component of the juvenile justice system in Ohio. These juvenile judges really do take community safety into account. They are members of their community, but at the same time they're able to adjudicate the unique factors of every single case in a way that appropriately can meet the needs of the juvenile offender, the victim, the family and the need for community safety."

Kids are immature; that's one of the reasons they're treated differently. Katherine Hunt Federle, director of the Justice for Children project at the Ohio State University and a teacher in the law school, says it's her job to make sure her students understand the difference between children and adults and the application of the law related to each.

"Kids' brains are different, and we can't hold them to adult standards because their brains are simply not developed yet," Federle says. "There's a joke in the neurological community that the car rental companies figured this out along time ago: You can't rent a car to someone under the age of 25.

"Think about someone standing and fighting when they didn't run away. Why didn't they run? Why do 18 year olds make such good soldiers but 35 year olds don't? If you think about all of this, it's largely because the human brain is developing in stages. All sorts of people develop at different rates." Federle explains in detail the roles of the prefrontal cortex - which helps adults predict the consequences of their actions - and the amygdala, the part of the brain associated with gut responses. Adults use the cortex; juveniles can't because theirs isn't fully developed yet.

"That's an interesting phenomenon largely because ... the brain develops from the back to the front. The back of the brain is the more primitive part of the brain, and the front of the brain is the more developed part, the more sophisticated part. So the last part of the brain to come on line is that prefrontal cortex, which is literally in the front."

That finally happens between ages 18 and 25, Federle says.

While some legislators were interested in learning more about the brain research cited during testimony by Federle and others, the final bill ignored their findings and included juveniles in the three-tier system with adult sex offenders.

Some experts predict the law will discourage family members from coming forward to report abuse. Frequently, in the case of juveniles, the offender is a victim of sexual abuse acting out what he or she experienced. But the law makes no distinction between a 14 year old who's been abused by an adult and who acts out sexually with a younger sibling, and a 16 year old who breaks into a home and assaults someone.

"When you articulate that difference," says Brown, "most reasonable people can understand that the community at large doesn't have a lot to fear from the 14 year old. Most people would be sympathetic and want the family to get help. To me, that is the difference most people appreciate."

Focusing on the more predatory behavior ignores the reality that the majority of sex crimes committed by juveniles have one thing in common with those of adults - the victim is almost always someone they know, frequently a relative.

"Our concern was that we don't pass something in law that has the unintended consequence of driving these people out of the treatment that they so desperately need - and then you create a lot of adult sex offenders your legislation is intended to address," he says. "We're cutting off our nose to spite our face."

The state's sex offender registry lists the license plate numbers of the vehicles that offenders drive or regularly ride in. When a victim and an offender are in the same family, both will be in a car publicly identified as carrying a sex offender. As several families testified in Columbus, no parent would want that experience for their children, let alone the rest of their family.

"Laws that prevent families from coming forward do not serve the offender, the victim, the family or society well," Brown says.

"Our legislative leaders are under a lot of pressure to react and do something. The tricky part is, once you've passed a law on sex offenders and it overreaches in a way that's not helpful or has unintended consequences, it's so much harder to come back and relax a standard than it is to be judicious in your approach, go for incremental change and see how it works and increment up."

The OACCA (oacca.org) fought hard to get juveniles removed from SB 10. The best they and other advocates could do was reduce the number of juveniles mandated for the adult registry and keep the Tier III juvenile registrants limited to the "worst of the worst."

There is no empirical evidence that proves sex offender registries keep children safe. The US Justice Department is now commissioning and funding studies looking at the effectiveness of registries, Singleton says.

But the evidence so far is troubling, according to Jill S. Levenson, southern regional coordinator for the Center for Offender Rehabilitation and Education and a board member of the Ohio Chapter of the Association for the Treatment of Sexual Abusers.

"There is a growing body of research that documents what we call collateral consequences of registration and notification; in other words, the kind of unintended consequences of these laws that disrupt stability and interfere with the ability of these offenders to reintegrate and create law-abiding, constructive lives for themselves," Levenson says. "Criminals who are placed back in the community need jobs, and they need a place to live. People aren't very sympathetic to that. But the reality is that we know that the factors that are ... associated with a good community adjustment and less recidivism in the future - desistance from crime - are stability in housing, social support and employment. These laws contradict what the research tells us about the environmental conditions that lead to the desistance of crime.

"Ultimately I don't think that's in the best interest of public safety. Let's face it: It's naive to think that we can prevent crime by banishing these people from our communities. Sex offenders have always lived amongst us. All kinds of criminals live amongst us, and it's only in the past 10 years ... that we've become more aware of them, and that has led to more residence restrictions."

Rules prohibiting former offenders from living within 1,000 feet of a school, as Ohio law does, are being expanded in many states. Bus stops, parks, daycare centers and other facilities where children gather are just a few of the latest places former sex offenders are banned. In Kentucky, communities are trying to get empty lots declared parks in order to take advantage of that state's new law and make it impossible for former offenders to move in.

"Maybe one of the biggest consequences is the crisis with housing," Levenson says. "In most states, residence restrictions are tied to sex offender registration status. So what's going to happen when we have this whole population of teenage sex offenders on public registries who are not going to be able to live within 2,500 feet of schools, parks and playgrounds? They're not going to be able to live with their parents, who live in residential neighborhoods. Where are they going to go? They're not going to be able to be in a foster home. They're not going to be able to be in shelters. They're not going to be able to be in rehab centers or treatment facilities."

For a juvenile offender, these housing restrictions are just the beginning of a lifetime of punishment.

The Ohio registry of sex offenders provides pictures, names and addresses. The new law requires more information to be provided and publicly posted: the names and addresses of offenders' jobs and/or the schools they attend.

"What we do when we put people on the registry - you're not just putting that one person on, you're putting their family on the registry, and I think that can cause tremendous hardship on the entire family," says Ed Connor, a juvenile psychologist. "What we're seeing is families are being hurt by this. Johnny goes to school and Billy says, "My daddy said your daddy's a pervert because he saw him in the Internet.' That doesn't need to be a public issue. These people are ashamed enough about what they did - not all of them, but the majority I have worked with have a sufficient degree of shame and humiliation and remorse for what they did. And to add to it by putting them on a public registry, in my opinion, would be counterproductive to the treatment."

Levenson agrees. She believes punitive laws such as the Adam Walsh Act and SB 10 blur the line between the political and social desire for punishment and effectively managing former offenders.

"With registration, notification and subsequently residence restriction, in some places like Miami you've probably seen sex offenders living under bridges," Levenson says. "We've essentially created a whole class of homeless sex offenders. As a society, I think we have to question how we've gotten to a point where we feel like it's OK to force people to be homeless and then think that's going to be beneficial to public safety."

Amy Borror of the Ohio Public Defender's Office testified before the Ohio House of Representatives about the flaws in SB 10. The House of Representatives had "the most thorough hearing of the bill" with several days of testimony, she says. But the audience was often missing.

"A vast majority of the members of the committee weren't there, so we would have several hours of testimony of people talking about treatment and people talking about their own family members who would be impacted by this and - I think it's 23 members on the committee - there would be maybe six [present]," Borror says.

She and others had wanted to testify before the senate, but that was impossible: There wasn't a draft of the bill available during the hearing phase of the legislative process.

Furthermore, Borror wouldn't have been able to tell senators if the bill would meet the threshold for "substantial compliance" with the federal law because nobody knew yet what the criteria would be. The US Attorney General's office issued proposed guidelines for state compliance the day after the Ohio Senate passed SB 10.

But careful forethought isn't the only thing missing. There's no money in it for treatment, the one response to sex offenders that's proven to work.

"We tend to take simply a punitive approach often times with those who offend, when we know that sexual offenders can be treated," Connor says. "It's a myth that they can't. We thought, "Once an offender, always an offender, just like an alcoholic.' But we know now that offenders can be treated. You've got to identify the ones who are amenable to treatment and ones who are very, very high-risk folks."

Also missing from the law is a mandate to educate the public - practical information to help people avoid and survive any kind of attack, as well as information to help eliminate myths and misconceptions about sex offenders.

"Sex offenses and sex offenders fall into a really broad range," Levenson says. "Everybody who is convicted of drunk driving is not an alcoholic. Everyone who is convicted of a sex offense is not a sexual predator."

Ignorance, she adds, "reinforces that myth of stranger danger. These laws are passed in response after abductions and murders. They're terrible; all those cases are really frightening and troubling to all of us. It really shakes our sense of safety and security. But sex offender registration is likely to do very little to prevent those kinds of things because most children are sexually abused by people they know."

With up to 95 percent of all sex crimes committed by a person known to the victim, what does a sex offender registry actually accomplish? Nobody knows. Singleton says the one thing it does for sure is make it harder for people to rejoin society.

"It drives people underground and destabilizes them," he says. "It stands in the way of a lot of offenders who aren't dangerous ever returning to their lives and getting back on their feet and being productive in our community - which is what we should all want.

"This is bad policy, and this is unfair. It's counterproductive. No one wants to hear that in this community. They want to know that they're safe. This isn't going to make them safe. It can actually be counterproductive - it makes them more unsafe ... because it gives them a false sense of security."


MO - Richland policeman charged with sexually assaulting girl

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11/20/2007

A former Richland police officer has been arrested and charged with deviate sexual assault and sexual abuse of a minor, according to court documents.

According to court records, Michael R. Hynes, 35, now a Camdenton resident, was charged on Nov. 1 with felony sexual contact with a young girl on Oct. 2 despite her protests.

The charges stem from “an on-going special investigation wherein it was alleged that Hynes, while on duty as a city of Richland police officer had engaged in sexual misconduct,” according to court records. The documents say that on Oct. 9, Hynes acknowledged his conduct on Oct. 2 against the girl at her rural residence outside the city limits.

The charging documents accuse Hynes of restraining the girl and physically touching her in several places without her consent.

Hynes was arrested and held in lieu of $50,000 bail, with an additional condition that he have no contact with the girl involved in the case.

In a press release from the Richland Police Department, Chief M.J. Hurney said Hynes had served briefly as a probationary police officer and was terminated by the Richland city council on Oct. 30.

Hurney said the matter was referred to the Missouri State Highway Patrol’s investigational unit in early October because the offenses are alleged to have occurred outside the city limits and because they involved a police officer.


National Association of Criminal Defense Lawyers - Sex Offender Resources

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Fact Sheets, Talking Points and Position Papers

NACDL Sex Offender Task Force Policy Report (Feb. 24, 2007)

Iowa County Attorneys Association: Statement on Sex Offender Residency Restrictions in Iowa (January 2006)


Reports and Powerpoints

Carey, Corinne A.: "Banishment or Facilitated Reentry: A Human Rights Perspective," Powerpoint presentation for the Association for the Treatment of Sexual Abusers conference (Nov. 17, 2005)

Center for Sex Offender Management: "Community Notification and Education" (April 2001)

Colorado Office of Domestic Violence and Sex Offender Management: "Report on Safety Issues Raised by Living Arrangements for and Location of Sex Offenders in the Community" (March 15, 2004)

Department of Rehabilitation and Corrections of Ohio: "Ten-Year Recidivism Follow-Up Of 1989 Sex Offender Releases" (April 2001)

Human Rights Watch: "No Easy Answers: Sex Offender Laws in the US," (September 2007)

Levenson, Jill S.: "Sex Offender Residence Restrictions: A Report to the Florida Legislature" (Oct. 2005)

Levenson, Jill S.: "Sexual Offenders: Risk, Recidivism and Social Policies," Powerpoint presentation (July 2006)

Minnesota Department of Corrections: "Level Three Sex Offenders: Residential Placement Issues; 2003 Report to the Legislature," Jan. 2003 (revised Feb. 2004)

Minnesota Department of Corrections: "Residential Proximity & Sex Offense Recidivism in Minnesota," April 2007

National Center on Institutions and Alternatives: "Sex Offenses: Facts, Fictions and Policy Implications" (Jan. 2006)

Washington State Institute for Public Policy: "Involuntary Commitment of Sexually Violent Predators: Comparing State Laws," (March 2005)



Case Law, Briefs and Motions

Superior Court of New Jersey: G.H. v. Township of Galloway; Opinion Invalidating Residency Restriction Ordinance (February, 2007)

Southern Center for Human Rights: Wendy Whitaker, et al. v. Sonny Perdue, et al.; Brief in Support of Motion for Preliminary Injunction Re: Georgia's Sex Offender Residency Restriction Law (June 21, 2006)


Law Review and Journal Articles

Jill S. Levenson, David A. D'Amora, and Andrea L. Hern, "Megan's Law and it's Impact on Community Re-Entry for Sex Offenders," Behavioral Sciences and the Law 25, 2007.

Jill S. Levenson, Yolanda N. Brannon, Timothy Fortney, and Juanita Baker, "Public Perceptions About Sex Offenders and Community Protection Policies," Analyses of Social Issues and Public Policy vol 7. no. 1, 2007.

Levenson, Jill S., “Reliability of Sexually Violent Predator Civil Commitment Criteria in Florida,” Law and Human Behavior, vol. 28, no. 4, August 2004.

Levenson, Jill S., “Sexual Predator Civil Commitment: A Comparison of Selected and Released Offenders,” International Journal of Offender Therapy and Comparative Criminology, 48(6), 2004.

Levenson, Jill S., “Sex Offender Residence Restrictions,” Sex Offender Law Report, Civil Research Institute (in press).

Levenson, Jill S. and Hern, Andrea L., "Sex Offender Residence Restrictions: Unintended Consequences and Community Reentry," Justice Research and Policy vol. 9 no. 1, 2007.

Levenson, Jill S. and D'Amora, David A., "Social Policies Designed to Prevent Sexual Violence: The Emperor's New Clothes," Criminal Justice Policy Reviewvol 18. no. 2, June 2007.

Levenson, Jill S. and Cotter, Leo P., "The Impact of Sex Offender Residence Restrictions: 1,000 Feet From Danger or One Step From Absurd?, International Journal of Offender Therapy and Comparative Criminology, 49(2), 2005, pp. 168-178.

Levenson, Jill S. and Cotter, Leo P., "The Effect of Megan's Law on Sex Offender Reintegration," Journal of Contemporary Criminal Justice, vol. 21 no. 1, February 2005, pp. 49-66.


Media Coverage
See NACDL's State Sex Offender Page for the most recent media coverage.


Links

Association for the Treatment of Sexual Abusers
Contains research, policy papers, and contacts for sex offender treatment experts and researchers around the country.

Center for Sex Offender Management
A project of the Office of Justice Programs, US Dept. of Justice. Contains a variety of resources and publications about management of sex offenders in the community.

Florida Association for the Treatment of Sexual Abusers
The Florida ATSA affiliate. Contains position papers, amicus briefs, and information about sex offender legislation in Florida.

NACDL’s Federal Sex Offender Legislation Page
Includes analyses, backgrounders, and sign-on letters opposing various provisions of pending sex offender legislation.

Ohio Justice and Policy Center
OJPC is working for fair-minded, progressive reforms of Ohio's criminal justice system. OJPC is involved in a number of lawsuits challenging the state's sex offender residency restrictions.

Sentencing Law and Policy Blog
Excellent coverage of sex offender sentencing issues by Profs. Douglas A. Berman and William B. Saxbe of Ohio State University's Moritz College of Law.

Washington State Institute for Public Policy
The public policy research agency for the Washington state legislature. The website has a number of research papers on sex offender policy.


True Crimes, False Confessions

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06/2005

Why do innocent people confess to crimes they did not commit?

In 1989 a female jogger was beaten senseless, raped and left for dead in New York City's Central Park. Her skull had multiple fractures, her eye socket was crushed, and she lost three quarters of her blood. She survived, but she cannot remember anything about the incident. Within 48 hours of the attack, solely on the basis of confessions obtained by police, five African- and Hispanic-American boys, 14 to 16 years old, were arrested. The crime scene had shown a horrific act but carried no physical traces at all of the defendants. Yet it was easy to understand why detectives, under the glare of a national media spotlight, aggressively interrogated the teenagers, at least some of whom were "wilding" in the park that night.

Four of the confessions were videotaped and later presented at trial. The tapes were compelling, with each of the defendants describing in vivid--though, in many ways, erroneous--detail how the jogger was attacked and what role he had played. One boy reenacted the way he pulled off her running pants. Another said he felt pressured by the others to participate in his "first rape"; he expressed remorse and promised that it would not happen again. After their arrest, the youths recanted these confessions, because they had believed that making a confession would have enabled them to go home. Regardless of the denials, the tapes collectively persuaded police, prosecutors, two trial juries, a city and a nation; the teenagers were convicted and sentenced to prison.

Thirteen years later Matias Reyes, who was in jail for three rapes and a murder committed after the jogger attack, stepped forward of his own initiative. He volunteered that he was the Central Park assailant and that he had acted alone. The Manhattan district attorney's office questioned Reyes and discovered that he had accurate, privileged and independently corroborated knowledge of the crime and crime scene. DNA testing further revealed that the semen samples recovered from the victim--which had conclusively excluded the boys as donors--belonged to Reyes. (Prosecutors had argued at trial that just because police did not capture all the alleged perpetrators did not mean they did not get some of them.) In December 2002 the five teenagers' convictions were vacated.

Despite its notoriety, the case illustrates a phenomenon that is not new or unique. The pages of legal history reveal many tragic miscarriages of justice involving innocent men and women who were prosecuted, wrongfully convicted, and sentenced to prison or to death. Opinions differ on prevalence rates, but it is clear that a disturbing number of cases have involved defendants who were convicted based only on false confessions that, at least in retrospect, could not have been true. Indeed, as in the case of the Central Park incident, disputed false confessions have convicted some people notwithstanding physical evidence to the contrary. As a result of technological advances in forensic DNA typing--which enables the review of past cases in which blood, hair, semen, skin, saliva or other biological material has been preserved--many new, high-profile wrongful convictions have surfaced in recent years, up to 157 in the U.S. alone at the time of this writing. Typically 20 to 25 percent of DNA exonerations had false confessions in evidence.

Why would an innocent person confess to a crime? A scan of the scientific literature reveals how a complex set of psychological factors comes into play. First, techniques commonly used by investigators during interviews make them prone to see deceit in suspects, a perception that tends to bias the outcome of the questioning. When the accused waive their constitutional rights to silence and to counsel during questioning by the police, they may also unwittingly lose procedural safeguards and put themselves at greater risk of making a false confession. Other contributors include a given person's tendencies toward compliance or suggestibility in the face of two common interrogation tactics--the presentation of false incriminating evidence and the impression that giving a confession might bring leniency. In short, sometimes people confess because it seems like the only way out of a terrible situation.

More troubling, confession evidence is inherently prejudicial, influencing juries even when they are shown evidence of coercion and even when there is no corroboration. Ultimately, we believe, society should discuss the urgent need to reform practices that contribute to false confessions and to require mandatory videotaping of all interviews and interrogations.

Discerning the Truth
A 2004 conference on police interviewing attended by the two of us illustrates the problem of bias during questioning. Joseph Buckley--president of John E. Reid and Associates (which has trained tens of thousands of law-enforcement professionals) and co-author of the manual Criminal Interrogation and Confessions (Aspen Publishers, 2001)--presented the influential Reid technique of interviewing and interrogation. Afterward, an audience member asked if the persuasive methods did not at times cause innocent people to confess. Buckley replied that they did not interrogate innocent people.

To understand the basis of this remark, it is important to know that the highly confrontational, accusatory process of interrogation is preceded by an information-gathering interview intended to determine whether the suspect is guilty or innocent. Sometimes this initial judgment is reasonably based on witnesses, informants or other extrinsic evidence. At other times, however, such judgments may be based on nothing more than a hunch, a clinical impression that investigators form during a preinterrogation interview.

The risk of error at this stage is clear, as in the 1986 Florida case involving Tom Sawyer, whom investigators accused of sexual assault and murder and interrogated for 16 hours, extracting a confession. His statement was later suppressed by the judge, and the charges were dropped. Sawyer had become a prime suspect because his face flushed and he appeared embarrassed during an initial interview, a reaction interpreted as a sign of deception. Investigators did not know that Sawyer was a recovering alcoholic with a social anxiety disorder that caused him to sweat profusely and blush in evaluative social situations. Many of the characteristics associated with acting "guilty" are also signs of a person under high stress.

Separating truths from lies is tricky. In fact, most experiments have shown that people perform at no better than chance levels and that training programs produce, at best, small and inconsistent improvements compared with naive control groups. In general, professional lie catchers, such as police detectives, psychiatrists, customs inspectors and polygraph examiners, exhibit accuracy rates in the 45 to 60 percent range, with a mean of 54 percent.

Even with those statistics, trained investigators believe they are more accurate in determining guilt or innocence. In 2002 Christian Meissner of Florida International University and one of us (Kassin) conducted a meta-analysis to examine their performance. Across studies, investigators and educated participants, relative to naive controls, exhibited a proclivity to judge targets as deceptive--and to do so with confidence. Expressing a particularly cynical but telling point of view, one detective is quoted as saying in a 1996 article by Richard A. Leo of the University of California at Irvine, "You can tell if a suspect is lying by whether he is moving his lips."

Protections Averted
With suspects judged deceptive from their interview behavior, the police shift into a highly confrontational process of interrogation. There is, however, an important procedural safeguard in place to protect the accused. In the landmark Miranda v. Arizona in 1966, the U.S. Supreme Court ruled that police must inform all suspects of their constitutional rights to silence ("You have the right to remain silent; anything you say can and will be held against you in a court of law") and to counsel ("You are entitled to consult with an attorney; if you cannot afford an attorney, one will be appointed for you"). Only if suspects waive these rights "voluntarily, knowingly and intelligently" as determined in law by consideration of "a totality of the circumstances" can the statements they produce be admitted into evidence.

Miranda may not yield the protective effect for which it was designed for two reasons. First, a number of suspects--because of their youth, level of intelligence, lack of education or mental health status--do not have the capacity to understand and apply the rights they are given. Second, police use methods of presentation that elicit waivers. After observing live and videotaped police interrogations, Leo found that roughly four out of five suspects waive their rights and submit to questioning. He also observed that individuals who have no prior felony record are more likely to waive their rights than are those with a history of criminal justice "experience." In a 2004 study by one of us (Kassin) and Rebecca Norwick of Harvard University, subjects guilty or innocent of a mock crime (stealing $100) were confronted by a neutral, sympathetic, or hostile "Detective McCarthy" who asked if they would waive their rights and talk. Only 36 percent of guilty subjects agreed, but 81 percent of innocents waived these rights, saying later they had nothing to hide or fear.

Interrogation Tactics
In the past, American police routinely practiced "third degree" methods of custodial interrogation--inflicting physical or mental pain and suffering to extract confessions and other types of information from crime suspects. Such tactics have mostly faded into the annals of criminal justice history, but modern police interrogations remain powerful enough to elicit confessions. At the most general level, it is clear that the two-step approach employed by Reid-trained investigators and others--in which an interview generates a judgment of truth or deception, which in turn determines whether or not to proceed to interrogation--is inherently biased.

For innocents who are initially misjudged, one would hope that interrogators would remain open-minded and reevaluate their beliefs over the course of questioning. A warehouse of psychology research suggests, however, that once people form a belief, they selectively seek, collect and interpret new data in ways that verify their opinion. This distorting cognitive confirmation bias makes such personal convictions resistant to change, even in the face of contradictory evidence. It also contributes to the errors committed by forensic examiners whose judgments of handwriting samples, bite marks, tire marks, ballistics, fingerprints and other "scientific" observations are often corrupted by a priori expectations, a problem uncovered in many DNA exoneration cases.

In one instance in 2002, Bruce Godschalk was exonerated of two rape convictions after 15 years in prison when laboratories for both the state and the defendant found from his DNA that he was not the rapist. Yet the district attorney whose office had convicted Godschalk--even though Godschalk disavowed his initial confession--argued that the DNA tests were flawed and refused at first to release him from prison. When the district attorney was asked what foundation he had for his decision, he asserted, "I have no scientific basis. I know because I trust my detective and his tape-recorded confession. Therefore, the results must be flawed until someone proves to me otherwise."

The presumption of guilt also influences the way police conduct interrogations, perhaps leading them to adopt an aggressive and confrontational questioning style. Demonstrating that interrogators can condition the behavior of suspects through an automatic process of social mimicry, Lucy Akehurst and Aldert Vrij of the University of Portsmouth in England found in 1999 that increased gestures and physical activity among police officers triggered movement among interviewees--fidgeting behavior that is then seen by others as suspicious.

It is important to scrutinize the specific practices of social influence that get people to confess. Proponents of the Reid technique advise interrogators to conduct the questioning in a small, barely furnished, soundproof room. The purpose is to isolate the suspect, increasing his or her anxiety and desire to escape. To further heighten discomfort, the interrogator may seat the suspect in a hard, armless, straight-backed chair; keep light switches, thermostats and other control devices out of reach; and encroach on the suspect's personal space over the course of interrogation.

Against this physical backdrop, the Reid operational nine-step process begins when an interrogator confronts the suspect with unwavering assertions of guilt (1); develops "themes" that psychologically justify or excuse the crime (2); interrupts all efforts at denial and defense (3); overcomes the suspect's factual, moral and emotional objections (4); ensures that the passive suspect does not withdraw (5); shows sympathy and understanding and urges the suspect to cooperate (6); offers a face-saving alternative construal of the alleged guilty act (7); gets the suspect to recount the details of his or her crime (8); and converts the latter statement into a full written or oral confession (9). Conceptually, this system is designed to get suspects to incriminate themselves by increasing the anxiety associated with denial, plunging the suspect into a state of despair and then minimizing the perceived consequences of confession.

Rates of confession vary in different countries, indicating the underlying role that institutional and cultural influences play. For example, suspects detained for questioning in the U.S. confess at a rate around 42 percent, whereas in England the figure is closer to 60 percent. In Japan, where few restraints are placed on police interrogations and where social norms favor confession as a response to the shame brought by transgression, more than 90 percent of suspects confess.

In so-called self-report studies, researchers ask why people confessed. In 1991 one of us (Gudjonsson) and Hannes Petursson of University Hospital in Reykjavik, Iceland, published the first work in this area carried out on Icelandic prison inmates, which was replicated in Northern Ireland and in a larger Icelandic prison population with an extended version of a 54-item self-report instrument, the Gudjonsson Confession Questionnaire.

Although most suspects confess for a combination of reasons, the most critical is their belief about the strength of the evidence against them. That is why the tactic of presenting false evidence--as when police lie to suspects about an eyewitness that does not exist; fingerprints, hair or blood that has not been found; or lie detector tests they did not really fail--can lead innocent people to confess. In a 1996 laboratory experiment that illustrates the point, Kassin and Katherine L. Kiechel of Williams College falsely accused college students of crashing a desktop computer by hitting a key that they were told was off-limits. When a fellow student who was present said she had witnessed the students hit the forbidden key, the number induced to sign a confession increased by 45 percent. Also increased were the numbers who internalized a belief in their own guilt and fabricated false memories to support that belief.

False Confessions
In 2004 Steven A. Drizin of Northwestern University School of Law and Leo analyzed 125 cases of proved false confessions in the U.S. from between 1971 and 2002, the largest sample ever studied. Approximately two thirds were exonerated before the trial, and the rest came after conviction. Ninety-three percent of the false confessors were men. Overall, 81 percent occurred in murder cases, followed by rape (8 percent) and arson (3 percent). The most common bases for exoneration were that the real perpetrator was identified (74 percent) and that new scientific evidence was discovered (46 percent). The sample was disproportionately represented by persons who were young (63 percent were younger than 25; 32 percent were under 18), mentally retarded (22 percent) and diagnosed with mental illness (10 percent). Astonishingly, 30 percent of the cases contained more than one false confession to the same crime, as in the Central Park jogger case, typically indicating that one false confession was used to get others.

Recognizing that people confess in different ways and for different reasons, psychologists categorize false confessions into three groups:

Voluntary false confessions. When aviator Charles Lindbergh's baby was kidnapped in 1932, some 200 people stepped forward to confess. In the 1980s Henry Lee Lucas falsely admitted to hundreds of unsolved murders, making him the most prolific serial confessor in history. People might voluntarily give a false confession for reasons including a pathological desire for notoriety; a conscious or unconscious need to expiate feelings of guilt over prior transgressions; an inability to distinguish fact from fantasy; and a desire to aid and protect the real criminal.

Compliant false confessions. In these cases, the suspect confesses to achieve some end: to escape an aversive situation, to avoid an explicit or implied threat, or to gain a promised or implied reward. In Brown v. Mississippi in 1936, for example, three black tenant farmers admitted to murder after they were whipped with a steel-studded leather belt. And in the Central Park jogger case, each boy said he had confessed despite innocence because he was stressed and expected to go home if he cooperated.

Internalized false confessions. During interrogation, some suspects--particularly those who are young, tired, confused, suggestible and exposed to false information--come to believe that they committed the crime in question, even though they did not. In a classic case, 18-year-old Peter Reilly of Falls Village, Conn., returned home one night to find that his mother had been murdered. Reilly immediately called the police but was suspected of matricide. After gaining Reilly's trust, the police told him that he failed a lie detector test (which was not true), and which indicated that he was guilty even though he had no conscious memory of the event.

After hours of interrogation, the audiotape reveals that Reilly underwent a chilling transformation from denial to confusion, self-doubt, conversion ("Well, it really looks like I did it") and finally a full confession ("I remember slashing once at my mother's throat with a straight razor I used for model airplanes.... I also remember jumping on my mother's legs"). Two years later independent evidence revealed that Reilly could not have possibly committed the murder.

Trial jurors, like others in the criminal justice system who precede them, can be overly influenced by confessions. Archival analyses of actual cases containing confessions later proved false tell a disturbing tale. In these cases, the jury conviction rates ranged from 73 percent (as found by Richard Ofshe of the University of California at Berkeley and Leo in 1998) to 81 percent (as found by Drizin and Leo in 2004)--about the same as cases in which the defendants had made true confessions.

In light of such findings, the time is ripe for law-enforcement professionals, policymakers and the courts to reevaluate current methods of interrogation. Although more research is needed, certain practices clearly pose a risk to the innocent. One such factor concerns time in custody and interrogation. The 2004 study by Drizin and Leo found that in proved false confession cases, the interrogations lasted for an average of 16.3 hours. In the Central Park case, the five boys were in custody for 14 to 30 hours by the time they confessed. Following the Police and Criminal Evidence Act of 1986 (PACE) guidelines implemented in England and Wales, policy discussions should begin with a proposal for the imposition of time limits for detention and interrogation or at least flexible guidelines, as well as periodic breaks for rest and meals.

A second problem concerns the tactic of lying to suspects about the evidence. Research shows that people capitulate when they believe that the authorities have strong evidence against them. The practice of confronting suspects with real evidence, or even their own inconsistent statements, should increase the reliability of the confessions ultimately elicited. When police misrepresent the evidence, however, innocent suspects come to feel as trapped as the perpetrators--which increases the risk of false confession.

A third matter revolves around the use of minimization, as when police suggest to a suspect that the conduct in question was provoked, an accident or otherwise morally justified. Such tactics lead people to infer leniency in sentencing on confession, as if explicit promises had been made. In a study that is now in press, Melissa Russano of Roger Williams University and her colleagues found that such covert assurances can contribute to false confessions.

The Need for Reforms
To assess any given confession accurately, police, judges, lawyers and juries should have access to a videotaped record of the interrogation that produced it. In Great Britain, PACE mandated that all sessions be taped. In the U.S., four states--Minnesota, Alaska, Illinois and Maine--have mandatory videotaping, although the practice is often found elsewhere on a voluntary basis. Videotaping deters interrogators from using the most aggressive, psychologically coercive methods. It also will block frivolous defense claims of coercion where none existed. And it provides an objective and accurate record of all that transpired, avoiding disputes about how the confession came about.

A 1993 National Institute of Justice study revealed that many U.S. police departments already have videotaped interrogations--and the vast majority found the practice useful. More recently, in 2004, Thomas P. Sullivan of the law firm Jenner & Block interviewed officials from 238 police and sheriff's departments in 38 states who made such recordings voluntarily and found that they enthusiastically favored the practice, which increases accountability, provides an instant replay of the suspect's statement that reveals information initially overlooked and reduces the amount of time spent in court defending their interrogation conduct. As a counter to the most common criticisms, those interviewed found that videotaping is not costly and does not inhibit suspects from talking to police.

Such reforms are sorely needed. Only then can society trust the process of interrogation and the confessions that it produces--and help to promote justice for all.


The Shame Game

View the article here

01/2007

It was just before 3 p.m. on a Sunday afternoon last November when a contingent of police gathered outside the home of Louis Conradt Jr., a longtime county prosecutor living in the small community of Terrell, Texas, just east of Dallas. Though the fifty-six-year-old Conradt was a colleague of some of the officers, they hadn’t come to discuss a case or for a backyard barbeque. Rather, the veteran district attorney, who had prosecuted hundreds of felonies during more than two decades in law enforcement, was himself the target of an unusual criminal probe. For weeks the police in the nearby town of Murphy had been working with the online watchdog group Perverted Justice and producers from Dateline NBC’s popular “To Catch a Predator” series in an elaborate sting operation targeting adults cruising the Internet to solicit sex from minors. Dateline had leased a house in an upscale subdivision, outfitted it with multiple hidden cameras, and hired actors to impersonate minors to help lure suspects into the trap. As with several similar operations previously conducted by Dateline, there was no shortage of men looking to score with underage boys and girls. In all, twenty-four men were caught in the Murphy sting, including a retired doctor, a traveling businessman, a school teacher, and a Navy veteran.

Conradt had never shown up at the Dateline house, but according to the police, using the screen name “inxs00,” he did engage in explicit sexual exchanges in an Internet chat room with someone he believed to be a thirteen-year-old boy (but was actually a volunteer for Perverted Justice). Under a Texas law adopted in 2005 to combat Internet predators, it is a second-degree felony to have such communications with someone under the age of fourteen, even if no actual sexual contact takes place. Armed with a search warrant — and with a Dateline camera crew on the scene — the police went to Conradt’s home to arrest him. When the prosecutor failed to answer the door or answer phone calls, police forced their way into the house. Inside they encountered the prosecutor in a hallway holding a semiautomatic handgun. “I’m not going to hurt anybody,” Conradt reportedly told the police. Then he fired a single bullet into his own head.

Standing outside the house with his crew, the Dateline correspondent Chris Hansen said he did not hear the shot that ended Conradt’s life, but did see his body wheeled out on a gurney. Discussing Conradt’s death over lunch a couple of weeks later, I asked Hansen how it made him feel. Hansen said his first reaction was as a newsman who had to cover the story for his network (Hansen filed a report the next morning for NBC’s Today show). Hansen said that on a human level Conradt’s death was a tragedy that, naturally, he felt bad about. But he understood the true import of my question: “If you’re asking do I feel responsible, no,” Hansen said. “I sleep well at night.”

Others aren’t so sanguine. Galen Ray Sumrow, the criminal district attorney of Rockwall County, Texas, who heads the office where Conradt worked as an assistant district attorney, has reviewed evidence surrounding the case and believes it was badly botched. Among the problems he cites are that the search warrant obtained by the Murphy police officers was defective because it had the wrong date and listed the wrong county for service, basic errors that he believes would have gotten any evidence seized from Conradt’s home tossed out of court. He is also mystified as to why the police would force their way into Conradt’s home when they could have tried to talk him out, or just picked him up at work the next day. “He was here in the office every morning,” says Sumrow, who is himself a former police officer and has been prosecuting cases for more than twenty years. “You generally like to do an arrest like that away from the home to avoid things like what happened.” A sworn affidavit supporting the warrant also shows that the information about Conradt’s online activities was given to the Murphy police by Perverted Justice just hours before they went to arrest him. Why were the police in such a rush to pick up Conradt? Texas Rangers are investigating that question, but Sumrow thinks he knows the answer: “It’s reality television,” he says. Sumrow says an investigator told him the police pushed things because the Dateline people had plane tickets to fly home that afternoon and wanted to get the bust on film for the show. He says investigators also told him that film excerpts show Dateline personnel, including Hansen, interacting with police on the scene, supplying them with information, and advising them on tactics. Sergeant Snow Robertson of the Murphy police says accommodating Dateline’s schedule “wasn’t a factor at all.” Rather, he says, the urgency was to keep Conradt from contacting another minor. Dateline’s Hansen confirms that he was to fly out that Sunday, but says such plans are always subject to change and that he hadn’t even checked out of his hotel. He also denies advising the police during the operation at Conradt’s house. “This stuff is not remotely based in fact,” Hansen says.

At a town meeting called to discuss the Dateline sting operations, several Murphy residents expressed outrage that a parade of suspected sexual predators were lured to their community. Neighbors recounted police takedowns and car chases on their blocks, and some said fleeing suspects tossed drugs and other contraband into their yards. In a statement to the Murphy City Council, Conradt’s sister, Patricia, directly implicated Dateline in her brother’s death. “I will never consider my brother’s death a suicide,” she said. “It was an act precipitated by the rush to grab headlines where there was no evidence that there was any emergency other than to line the pockets of an out-of-control group and a TV show pressed for ratings and a deadline.” She added: “When these people came after him for a news show, it ended his life.” In an interview, she was even more direct: “They have blood on their hands,” she said, referring to Dateline, the police, and Perverted Justice.

In a sense, Conradt’s death was a tragedy foretold. In a piece for Radar magazine about the show, the writer John Cook quoted an unnamed Dateline producer as saying that “one of these guys is going to go home and shoot himself in the head.” When I asked Hansen and David Corvo, Dateline’s executive producer, if they were reviewing the show’s procedures in light of Conradt’s death, both said that there was no evidence to suggest that Conradt was aware of Dateline’s presence when he shot himself (though a camera crew was apparently on his block for hours before the police arrived), and that there were no plans to alter how the “Predator” series is handled. “I still feel like the show is a public service,” said Corvo. “We do investigations that expose people doing things not good for them. You can’t predict the unintended consequences of that. You have to let the chips fall where they may.”

The reluctance to tinker with the show’s formula is no doubt attributable to the fact that since its debut in the fall of 2004, “To Catch a Predator” has been the rarest of rare birds in the television news world: a clear ratings winner. The show regularly outdraws NBC’s other primetime fare. It succeeds by tapping into something that has been part of American culture since the Puritans stuck offenders in the stockade: public humiliation. The notion of delighting in another’s disgrace drives much of the reality TV phenomenon, and is present in the DNA of everything from Judge Judy to Jackass to Borat. “Predator” couples this with a hyped-up fear of Internet sex fiends, creating a can’t-miss formula. The show’s ratings success has made it a sweeps-week staple and turned Chris Hansen into something of a pop-culture icon. To date, by the show’s own count, it has netted 238 would-be predators, thirty-six of whom have either pleaded guilty or been convicted. Hansen regularly gives talks to schools and parent groups concerned about Internet sex predators, and he was even summoned to Washington to testify before a congressional subcommittee investigating the problem, where he and Dateline received effusive praise for their efforts. When the comedian Conan O’Brien filmed a bit to open this year’s Emmy Awards that showed him parading through the sets of hit shows of every network, his last stop was a “Predator” house where Hansen confronted him and O’Brien gave a spot-on rendition of the sweaty, shaky dissembling that most of the show’s targets display.

All that is a long way from where “To Catch a Predator” started. The Dateline producer Lynn Keller says she first contacted the Perverted Justice group about the possibility of doing a show in January or February of 2004. Perverted Justice had already worked with several local television stations, including one in Detroit, where Chris Hansen knew one of the producers and had talked with him about a sting operation the station had filmed using Perverted Justice’s online expertise to lure targets. Dateline’s first sting house was set up in Bethpage, Long Island, about an hour outside of New York City. Hansen recalls being nervous that no one would show up and that he might have to explain to the network why he had blown a bunch of money on a flop investigation. “We thought we might get one person,” Keller recalls. They needn’t have worried. Before he could even reach the house for the first day of filming, Hansen got a frantic call from Keller that the first target was inbound. Hansen beat him there by just fifteen minutes.

The Long Island sting netted eighteen suspects in two and a half days. Eight months later, the show set up a sting house in Fairfax, Virginia (at a home belonging to a friend of Hansen’s in the FBI), and snared nineteen more men, including a rabbi, an emergency-room doctor, a special-education teacher, and an unemployed man claiming to be a teacher, who memorably walked into the house naked. The third show, filmed in early 2006 in southern California, drew fifty-one men over three days. But even as the stings expanded and ratings soared, critics inside and outside the network raised serious questions about whether “To Catch a Predator” was erasing lines that even an increasingly tabloid newsmagazine show should respect.

To begin with, the show has an undeniable “ick” factor. The men (and to date they are all men) are mostly losers who show up packing booze and condoms. It is also undeniably compelling television. Each show follows a similar pattern: after asking the mark to come in, the decoy disappears to change clothes or go to the bathroom. Then, in a startling switcheroo, Hansen appears from off-stage and directs the man to take a seat. The men almost always comply, concluding that Hansen is either a cop or a father. The marks then proffer comical denials about what they are doing at the house, which never include their intent to have sex with a minor. Hansen then produces some particularly salacious details from their Internet chat with the decoy (“But you said you couldn’t wait to pour chocolate syrup all over her and lick it off with your tongue”). The mark then switches gears to say he has never done anything like this before and was just kidding around or role playing, which in turn cues Hansen to say something like, “Well, you’re playing on a big stage, because I’m Chris Hansen from Dateline NBC,” at which point cameras enter from off stage like furies summoned from hell. The mark, now fully perceiving his ruin, usually excuses himself, often pausing to shake hands with Hansen — the cult of celebrity apparently transcends even this awful reality — then exits into the waiting arms of police outside who swarm him as if he had just shot the president.

The police busts are the emotional capper to the encounter, one that highlights the show’s uncomfortably close affiliation with law enforcement. On the first two “Predator” stings, the show didn’t involve arrests, an omission that garnered complaints from viewers and cops alike. Though certain individuals from the initial episodes were subsequently prosecuted, the lack of police involvement from the outset made it hard to make cases that would stick. “The number one complaint from viewers was that we let them walk out,” says Keller. Starting with the third show and in the five subsequent stings, police were waiting to take down the suspects. In our interview and in his congressional testimony, Hansen is careful to refer to those arrests as “parallel” police investigations, as if they just happened to be running down the same track as Dateline, but the close cooperation is always evident. At a time when reporters are struggling to keep law enforcement from encroaching on newsgathering, Dateline, which is part of NBC’s news division, is inviting them in the front door — literally. Hansen tried to deflect this criticism of the show by saying that the volunteers from Perverted Justice serve as a “Chinese wall” between the news people at Dateline and the police.

But as we’ve learned from recent corporate scandals, such Chinese walls are often made of pretty thin tissue. In the case of “To Catch a Predator,” Perverted Justice does most of the groundwork preparing the shows and roping in the men. Initially, Dateline’s responsibility was to cover the group’s expenses, procure the house and outfit it with hidden cameras and, of course, supply Chris Hansen and airtime. However, after the third successful “Predator” show, Perverted Justice hired an agent and auctioned its services to several networks. NBC ended up retaining the group for a fee reported in The Washington Post and elsewhere to be between $100,000 and $150,000. Hansen would not confirm an amount but said he saw nothing wrong with compensating the group for its services, likening it to the way the news division will sometimes keep a retired general or FBI agent on retainer. “In the end I get paid, the producers get paid, the camera guy, why shouldn’t they?” says Hansen.

On the surface that certainly seems reasonable, but it ignores a few relevant points. First, Perverted Justice is a participant in the story, the kind of outfit that would traditionally be covered, not be on the news outlet’s payroll. “It’s an advocacy group intensely involved in this story,” says Robert Steele, who teaches journalism ethics at The Poynter Institute. “That’s different from hiring a retired general who is no longer involved in a policy-making role.” Second, it is clearly a no-no, even at this late date in the devolution of TV news, to directly pay government officials or police officers. Yet in effect that’s what Dateline did in at least one of its stings. The police in Darke County, Ohio, where Dateline set up its fourth sting in April 2006, insisted that personnel from Perverted Justice be deputized for the operation so as not to compromise the criminal cases it wished to bring against the targets. After some discussion, NBC’s lawyers agreed to the arrangement, which the network shrugs off as less than ideal but an isolated circumstance.

Further, though Hansen and Dateline reject allegations that they are engaging in paycheck journalism by paying Perverted Justice — arguing for a distinction between paying a consultant and paying a source for information — the line looks a little fuzzy. For example, Xavier von Erck, who founded Perverted Justice, says via e-mail that the operation had come to a point where it could “not bear any further costs relating to the shows. Hence, we obtained a consulting fee.” In turn, local law enforcement groups have stated that without the resources provided by Perverted Justice they couldn’t afford to do the criminal investigations they’ve mounted in conjunction with the “To Catch a Predator” series. See the problem? But for NBC’s deep pockets, no “parallel” police actions would take place. And are they really parallel? One lawyer I spoke with, who asked not be identified because her client’s case is still pending, claims the man was entrapped and said she has every intention of subpoenaing members of Dateline’s staff to testify if the case goes to trial. “They are acting as an arm of law enforcement and are material witnesses,” the lawyer said. “They definitely crossed a line.”

There is also the question of whether the series is fair to its targets. Let’s concede up front that this is an unsympathetic bunch of would-be perverts. But are they really that dangerous? Hansen himself divides those snared in the probes into three groups: dangerous predators, Internet pornography addicts, and sexual opportunists. But by Hansen’s own calculation fewer than one in ten of the men who show up at a sting house have a previous criminal record.

But the image projected by the “Predator” series is clearly meant to inflame parental fears about violent Internet sex fiends. The show has invoked the specter of famous child abduction cases like Polly Klaas. The very term “predator” calls to mind the image of the drooling, trench-coated sex fiend hanging out at the local playground with a bag full of candy. Reading through the chat transcripts posted on the Perverted Justice Web site, however, it seems clear that a lot of the men snared aren’t hard-core predators. Many express doubts about what they’re doing and have to be egged along a bit by the decoys, many of whom come off as anything but innocent children. Consider a few of these exchanges. In the first, the mark (johnchess2000) is talking to someone he believes is an underage girl (AJ’s Girl). She has agreed to let him come over to watch a movie:

johnchess2000: anything you want me to wear or bring?
AJ’s Girl: hmm
johnchess2000: wow your thinking for a long time
AJ’s Girl: lol sowwy
AJ’s Girl: u beter bring condoms
johnchess2000: wow. condoms???
johnchess2000: wow. your thinking big huh? ;0
johnchess2000: ;)
AJ’s Girl: :”>
johnchess2000: wow so you like me that much? :)
AJ’s Girl: maybe
johnchess2000: maybe?? why did you say condoms?
AJ’s Girl: :”> i duno
johnchess2000: haha. be honest
johnchess2000: you must like me a lot then huh?
AJ’s Girl: yea
AJ’s Girl: ur cute

Or this exchange between Jason, a twenty-one-year-old fireman and the decoy, a girl he thinks is thirteen:

jteno72960: so what kinda guys u like
katiedidsings: hot fireman 1s
jteno72960: ok what else is sexy to you
katiedidsings: tats
jteno72960: i have 2 inside my arm
jteno72960: will u kiss them for me?
katiedidsings: ya>
jteno72960: what about on the lips
katiedidsings: ya
jteno72960: i love to kiss
katiedidsings: me 2
jteno72960: really what else
katiedidsings: i dunno watevr u wantd 2 do
jteno72960: well what have u done
katiedidsings: evry thing
katiedidsings: wel not evrything
katiedidsings: but alot of stuff
jteno72960: well what did u like
katiedidsings: from behind

Or this last exchange between Rob (rkline05) a twenty-year-old from Ohio, and Dateline’s online decoy “Shia,” who poses as an underage girl. After days of chatting, Rob expresses doubts about their age difference and about a sexual encounter, but Shia dismisses his concerns and reassures him:

rkline05: but idk about everything we talked about
shyshiagirl: why not
rkline05: well you sure you wana do all that
shyshiagirl: yeaa why not
rkline05: idk i just wasnt sure you wanted to you
are a virgin and all
rkline05: you sure you want it to be me that takes that
shyshiagirl: yea why not. ur cool
rkline05: i just….. you really sure i feel weird
about it you being so much younger than me and all
shyshiagirl: ur not old. dont feel weird

Rob came to the Dateline sting house and later pleaded guilty for soliciting a minor online.

Entrapment is a legal term best applicable to law enforcement. Perverted Justice says it’s careful not to initiate contact with marks, nor steer them into explicit sexual banter. But as these chats and others make clear, they are prepared to flirt, literally, with that line. Under most state statutes passed to combat online predators, the demonstrated intent to solicit sexual acts from a minor is sufficient to land you in jail regardless of whether the minor is a willing participant. So, as a legal matter, the enticements offered by the decoys are of little importance to the police, or to issue advocates like Perverted Justice. But journalistically it looks a lot like crossing the line from reporting the news to creating the news.

Dateline has run afoul of this distinction before. Famously, in 1993, several producers and correspondents were fired for rigging a General Motors truck to explode in a crash test. More recently the program took heat for bringing Muslim-looking men to a NASCAR race to see what might happen (the program never aired). “Predator” seems to fall somewhere between those two examples. Perhaps its most direct counterpart in recent journalistic history is the famous sting operation mounted by the Chicago Sun Times. In 1978 the paper set up the Mirage Tavern in Chicago and snared a host of city officials for seeking bribes from the “owners,” who were actually undercover reporters. The Mirage was controversial in its day, but it seems tame by comparison to the Dateline stings. Al Tompkins, who teaches the ethics of television journalism at the Poynter Institute, draws a clear distinction between the Mirage and “Predator.” Mirage, he notes, was targeted at public officials who were known to be abusing the power of their offices for personal enrichment. “It was a legit question whether you could have covered the story any other way,” Tompkins says. “You couldn’t go through law enforcement because you didn’t know if police were involved in the corruption.” Tompkins, who has watched the Dateline series, says it looks more like a police prostitution sting than a news investigation.

Dateline has argued that “Predator” serves a genuine public good, but it could be argued that, in fact, Dateline is doing the public a disservice. When Attorney General Alberto Gonzales gave a speech about a major initiative to combat the “growing problem” of Internet predators, he cited a statistic that 50,000 such would-be pedophiles were prowling the Net at any given moment and attributed it to Dateline. Jason McLure, a reporter at Legal Times in Washington, D.C., (where I was formerly an editor), asked the show about the number. Dateline told him that it had gotten it from a retired FBI agent who consulted with the show. When the agent was contacted he wasn’t sure where the number had come from, terming it a “Goldilocks” figure — “Not small and not large.” He added that it was the same figure that was used by the media to describe the number of people killed annually by Satanic cults in the 1980s, and before that was cited as the number of children abducted by strangers each year in the 1970s. Dateline has now disowned the number, saying solid statistics about Internet predators are hard to find, but that the problem seems to be getting worse, a sentiment echoed by lawmakers in Congress.

But actually there isn’t much evidence that it is getting worse. For example, many news reports have cited a Justice Department study as saying that one in five children is approached online by a sexual predator. But as Radford Benjamin of The Skeptical Inquirer pointed out, what that 2001 study actually said was that 19 percent had received a “sexual solicitation” online, about half of which came from other teens and none of which led to a sexual assault. According to the study, the number of teens aggressively solicited by adults online was about 3 percent. A more recent study by the Crimes Against Children Research Center at the University of New Hampshire found that the number of kids getting unwanted sexual advances on the Internet was in fact declining. In general, according to data compiled by the National Center for Missing and Exploited Children, more than 70 percent of sexual abuse of children is perpetrated by family members or family friends.

That doesn’t mean Internet sex predators don’t exist, but Dateline heavily skews reality by devoting hour after hour of primetime programming to the phenomenon. As Poynter’s Tompkins notes: “Is there any other issue that’s received that much airtime? The question is whether the level of coverage is proportional to the actual problem.”

The answer, it seems, is no, and the explanation of why Dateline has seized on this mythical trend to anchor its venerable news show is that reality TV has so altered the broadcast landscape that traditional newsmagazine fare — no matter how provocative — just doesn’t cut it anymore. “Reality programs came in and newsmagazines no longer looked so great,” says one former producer for NBC News. While newsmagazines are cheap compared to other primetime shows, they don’t have the potential to be gigantic hits like Survivor or American Idol. For that reason, the producer notes, the entertainment divisions at the networks never really liked newsmagazines, which they had little hand in producing and for which they received no credit. At NBC, the former producer says, Jeff Zucker, formerly the president of the network’s news and entertainment group and now the c.e.o. of its television operations, regularly put the squeeze on Dateline, maintaining that the network needed its time slots to either develop new programming or schedule hit shows. “About the only thing they really want newsmagazines to do now is crime,” says the former producer. “If it’s not crime, they don’t think they can sell it. The traditional investigative reporting on shows like Dateline, or 48 Hours, or Primetime Live is no more.” (A notable exception, he says, is 60 Minutes.)

Dateline’s executive producer David Corvo prefers to see the change as a setting aside of older journalistic conventions to focus on new kinds of issues. The “Predator” series, he says, is just another form of enterprise journalism, one suited to the Internet age. But the distinction between enterprise and entertainment can be a difficult one. Dateline hasn’t so much covered a story as created one. In the process it has further compromised the barrier between reporters and cops that is central to the mission of journalism. If humiliating perverts and needlessly terrifying parents is the best use that newsmagazines can make of hours of primetime television, then perhaps they should be allowed to die and the time given over to the blood sport of reality programming. At least no one would dare to call it news.


Sex offender, new hire databases could be linked

View the article here

08/31/2006

A federal database containing personal information on every person in America who gets a job or files an unemployment claim may be used to track sex offenders, according to a report released this week.

The Government Accountability Office in June briefed (PDF) staffers of the House Ways and Means Committee on three possible ways to adapt the National Directory of New Hires to track down sex offenders who fail to update their registration on sex offender registries, or who move from one state to another.

Originally established in 1996 to track down people who fail to pay court-ordered child support payments, the National Directory of New Hires contains data on all new hires, quarterly wage reports and unemployment claims made in the United States. It’s now also used to track down people who fail to pay off student loans, as well as verify claims for unemployment and low-income housing.

While states maintain separate sex offender registries, they are all required to send their data to the National Sex Offender Registry maintained by the Federal Bureau of Investigation, which now contains records on over 400,000 convicted sex offenders. But because many sex offenders fail to keep their registrations up to date, the report said, the offenders frequently cannot be located. Law enforcement agencies have turned to motor vehicle records and private commercial databases to locate some sex offenders.

The National Directory of New Hires, however, cannot be used for any purpose not authorized by law. So Congress must authorize a change in the law. GAO presented three possible options for granting law enforcement access to the NDNH database:

  1. The FBI would, in the course of an investigation, request records for specific individuals from the Office of Child Support Enforcement, which maintains the NDNH database. Or, the FBI would be allowed to access data directly from the NDNH database, “either for a specific offender or to pursue an investigation in a particular region.”

  2. The NDNH database would be used directly in order to update records in the National Sex Offender Registry using computerized matching.

  3. Under a hybrid approach, the states would submit information requests to the FBI, which would then look up the sex offenders in the new hires database on their behalf. This would also allow states to locate people who were released from prison before the creation of the sex offender registries.

Any of the approaches would allow law enforcement to locate sex offenders wherever they move in the U.S., even if they don’t update their own entry on the sex offender registry, by tracking where they work — which law enforcement would also learn.

The drawbacks, GAO noted, were that 21 percent of the entries in the sex offender registry don’t have Social Security numbers, complicating automated matching, that the new hires database does not include everyone in the country, such as independent contractors and many self-employed individuals, and that granting “wider access to the NDNH could jeopardize the security and confidentiality of the information it contains.”

The report leaves it to Congress to choose which of the three options for linking the databases it likes best, noting that the costs and benefits of any of the approaches are “uncertain.” But it did recommend that Congress implement the first option, granting FBI the ability to request records from the new hires database, as well as authorizing a test of automated matching between the two databases.

In a response to a draft of the report, Daniel R. Levinson, Health and Human Services Inspector General, noted that the “privacy and security risks” associated with linking the databases “should be analyzed in greater depth.”

Levinson’s response continues: “The proposed use of NDNH data would move the use of NDNH into law enforcement, an entirely new direction, and might tend to increase the risk of privacy and confidentiality breaches. The potential ramifications of wrongful use of NDNH data, as well as inaccurate or outdated addresses, should be considered carefully.”

No one seems to consider, however, whether registering sex offenders — or, for that matter, virtually everyone — is a good idea. It always seems like it at first, but these databases, once compiled, tend to be used for things other than what they were designed and intended for. Then the law of unintended consequences, which no one can break, comes into play.