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"An Empirical Interpretation and Application of Ohio R.C. Chapter 2950 Sexual Offender Recidivism Factors" Right click and select "save target as" to download PDF of the book. Why this paper was written The R.C. § 2950.09(B)(3) factors have not been based on any empirical findings and the statute is vague and offers a person with average (or well above average) intelligence with no guidance on when, or how to apply each factor. Many of the factors can be combined with others, build upon each other, or they are redundant. There are no standards on what weight to apply to any of these factors and they have been applied and weighed in every method imaginable. Still, most importantly, there are no rules to determine a total risk score. Finally, an interesting comment from a couple members of the Ohio Criminal Sentencing Commission and the Criminal Sentencing Advisory Committee on the recidivism factors listed in R.C. §2929.12, "the purpose of the statutory listing is to assure that those listed factors will be weighted similarly by different judges,". This is contradictory to what the courts have said about the R.C. Chapter 2950 recidivism factors. Case Law Note: "We find that a judge must consider the guidelines set out in R.C. 2950(B)[(2)], but the judge has discretion to determine what weight, if any, he or she will assign to each guideline." State v. Thompson (2001) 92 Ohio St.3d 584,589, 752 N.E.2d 276,281 "R.C. 2950.09(B)[(3)] does not require that each factor be met; however, it does require that the trial court consider those factors that are relevant." State v. Thompson (1999) 140 Ohio App.3d 638,645, 748 N.E.2d 1144,1149 How can a defense attorney adequately defend a defendant when he does not know how the factors will be applied or the weight applied to the factors? Let alone know how a judge will combine them into a total risk score. The attorney would have to keep notes on how each judge weights and applies each factor and hope they do not change their methods. They are used in an arbitrary manner and that makes them capricious under the present system (the word "system" is applied loosely). Anything goes and the offender that does not fit at least one of the "sudden death" or "one strike and you’re" factors is actually much less likely than the average sex offender re-offending (about 10%). All this is aggravated because the only way to have an error corrected is by the appeals courts. The evidence standard of "clear and convincing" is very loose and worsened by the insufficiency of evidence review standard, "evidence viewed in light most favorable to the prosecution," giving a defendant almost no chance of winning an appeal. Empirically based risk scales where the factors have truly been associated with sexual recidivism have large manuals on when, how, what weight to apply, and how to total up the factors for a total score to determine the chance of recidivism. Chapter 2950 does none of the above. All the factors and guidelines can be placed on less than one page. In addition, no risk scale has a "sudden death" or "one strike and you’re" scoring system. Professionals in the field of sexual offender treatment take years to empirically research, develop, and test actuarial based risk scales, much more than the few months (most likely hours) the Ohio General Assembly did. This is made evident by the numerous redundant factors. A defendant facing a Sexual Offender Classification Hearing is reduced to praying for the right judge (or appellate panel), rather than having the confidence his case will be equally decided as those who have similar cases and circumstances surrounding their cases and history. Complied below for guidance are various sources to assist and educate attorneys, judges, and defendants in applying the § 2950.09(B)(3) factors in a manner that has been shown to relate to sexual recidivism. These take into consideration circumstances that truly increase or decrease an offender’s chance of recidivism (as well as educate) in relation to a measured effect on sexual recidivism. The Ohio factors and how they are being applied do not constitute a proper recidivism risk scale. All a defendant can do is pray that the judge is reasonable and possibly has some real knowledge or experience in calculating the chance of sexual recidivism. The goal in writing this is to give objective guidance to attorneys defending people facing an Ohio Sexual Offender Classification Hearing and judges faced with making these grave decisions based on what is relevant to sexual recidivism. Case Law Note: "At a sexual offender classification hearing, decisions are made regarding classification, registration, and notification that will have a profound impact on a defendant’s life." State v. Gowdy (2000), 88 Ohio St.3d 387,398, 727 N.E.2d 579,589 The impact reaches far beyond the defendant. It affects the community, offender’s family, and virtually everyone who is exposed to the offender. With this information, a defense attorney can adequately defend an offender and our judges can then properly adjudicate offenders at the proper risk level. Armed with this information an offender who is a low risk to re-offend can avoid a the predator label and its obligations, restrictions, and public notification that remain in effect until death. The importance of defeating the label at the Common Pleas level is aggravated by the fact that the Ohio General Assembly has removed the opportunity of the offender to petition the courts to present evidence on their current likelihood of re-offending and to have the label reconsidered. The adjudication now attaches until death, and can never be removed or terminated. [See R.C.§ 2950.07(B)(1) and 2950.09(D)(2)]. Many times more questions are raised for a factor than are answered. Still the questions need to be asked because when they cannot be answered that supports that the statute is vague and/or irrelevant for purposes of recidivism calculation and establishes itself as a catch all net. The belief is, by having these questions on the record and the lack of ability to be answered, that a challenge to the constitutionally of the factors listed in § 2950.09(B)(3) could be successfully mounted. There is no evidence that anyone has looked seriously at the validity of these factors and how or if they have any relevance to sexual recidivism, until now. Some of these factors have NO relevance in calculating sexual recidivism, but since the legislature has included them, the courts are blindly assuming they must be relevant. Many are based on misconceptions, emotions, and worst of all, sentencing enhancement factors designed to punish an offender. Some of the factors are also nearly identical or redundant. The statute says judges may consider all relevant factors. If a factor is not relevant (or redundant) to recidivism, it should have its relevance attacked and it should not be considered. Remember "all relevant" not "any" factors. Case Law Note: "R.C. 2950.09(B)[(3)] does not require that each factor be met; however, it does require that the trial court consider those factors that are relevant." State v. Thompson (1999) 140 Ohio App.3d 638,645, 748 N.E.2d 1144,1149 "Pursuant to R.C. 2950.09(B)[(3)], a judge may also consider any other evidence that he or she deems relevant to determining the likelihood of recidivism. Therefore, because R.C. 2950.09(B)[(3)] does not encroach upon the trial courts in its fact-finding authority…" State v. Thompson (2001) 92 Ohio St.3d 584,589, 752 N.E.2d 276,281 This is especially true in light of the "sudden death" or "one strike and you’re" scoring for determining if an offender is "likely to re-offend." Only one factor must be met to classify an offender as a "sexual predator" (until death), the scoring process is truly "sudden death." The importance of attacking factors when they are not relevant to sexual recidivism cannot be stressed enough. This situation is aggravated by the fact an offender’s only mechanism to correct an error by the Common Pleas Court is to go to the Appellate Court. The issue here is the standard of review for an insufficiency of evidence claim, which is, "in light most favorable to the prosecution" and the already very loose evidence standard of "clear and convincing evidence." The offender’s argument will need to be even stronger now to have the adjudication vacated or at best be remanded for a new hearing. Finally, maybe someday this paper (or a future version) will change the standard or improve the way Ohio determines likelihood of sexual offender recidivism. The long-term goal is this paper will inspire others with professional legal and psychological experience with sexual offenders to analyze Ohio’s sexual offender recidivism factors more in depth. Most importantly, to prevent people from being mislabeled until death as sexual predators. If this prevents even one false adjunction then its goal is considered accomplished.
For PDF versions please right click and select save as, thank you.
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