Judge Posner: “We need evidence-driven law just as we need evidence driven medicine.”

July 14th, 2011

In a fascinating sentencing case dealing with a defendant who possessed child pornography, Judge Posner looked (heavily) to the opinions of experts to make his determination. His comparison of the law and medicine is fascinating.

We need evidence-driven law just as we need evidencedriven medicine. Statistical analysis of sex crimes has shown that the best predictor of recidivism is not deportment at an interview but sexual interest in children. R. Karl Hanson, Kelley E. Morton & Andrew J.R. Harris, “Sexual Offender Recidivism Risk: What We Know and What We Need to Know,” 989 Annals of the N.Y. Academy of Sciences 154, 157 (2003) (tab. 1). Some studies show a high rate of recidivism among pedophilic sex offenders generally, ranging from 10 percent to 50 percent. Ryan C.W. Hall & Richard C.W. Hall, “A Profile of Pedophilia: Definition, Characteristics of Offenders, Recidivism, Treatment Outcomes, and Forensic Issues,” 82 Mayo Clinic Proceedings 457, 467 (2007). Another study found that only 6.8 percent of consumers of child pornography had been charged with a new child-pornography offense within 4 years but that the percentage rose to 9.5 percent within 6 years. Angela W. Eke, Michael C. Seto & Jennette Williams, “Examining the Criminal History and Future Offending of Child Pornography Offenders: An Extended Prospective Follow-up Study,” Law & Human Behavior, Nov. 19, 2010 (tab. 1), www.springerlink.com/content/ h4616862621x8616/ (visited June 23, 2011).

It’s a mistake to lump together different types of sex offender. Lisa L. Sample & Timothy M. Bray, “Are Sex Offenders Different? An Examination of Rearrest Patterns,” 17 Crim. Justice Policy Rev. 83, 93-97 (2006). This defendant’s characteristics suggest that he is more dangerous than the average consumer of child pornography. A pedophilic sex offender who has committed both a child-pornography offense and a hands-on sex crime is more likely to commit a future crime, including another hands-on offense, than a defendant who has committed only a child-pornography offense. Drew A. Kingston et al., “Pornography Use and Sexual Aggression: The Impact of Frequency and Type of Pornography Use on Recidivism Among Sexual Offenders,” 34 Aggressive Behavior 1, 9 (2008); Michael C. Seto & Angela W. Eke, “The Criminal Histories and Later Offending of Child Pornography Offenders,” 17 Sexual Abuse 201, 207 (2005) (tab. 3). The sadistic nature of much of the child pornography consumed by the defendant is another reason to worry about his being on the loose.

Judge Posner even criticized the defense attorney for not mentioning the scientific literature they did not deem worthy (good thing Judge Posner is here to bat cleanup).

The psychiatrist mentioned none of the relevant scientific literature in assessing the risk of recidivism, see United States v. McIlrath, 512 F.3d 421, 424 (7th Cir. 2008), and defense counsel did not suggest that the defendant might be civilly committed, as a continuing menace to society, after completion of his prison term.

Justice Breyer would approve.

H/T Sentencing Blog