*1 (No. 97026 . OF E. SIMONS
In re COMMITMENT STEPHEN (The Illinois, Appellant, of the State People Simons, E. Appellee). Stephen 16, 2004. Opinion December filed *2 General, Madigan, Attorney Springfield (Gary Lisa of Feinerman, General, Woloshin, and Linda D. Solicitor Hoffmann, Lionel and At- Jay W Weaver Paul Assistant General, counsel), of torneys Chicago, People. for the Jr., Alton, John M. for Delaney, appellee. East opinion JUSTICE THOMAS delivered the of the court:
Following a bench trial in the circuit court of Madison
County,
Simons, was found to be a
respondent, Stephen
sexually
person
Sexually
violent
under
Violent
(the Act) (725
et
Act
Persons Commitment
ILCS
207/1
(West 2002))
seq.
to the
of the
custody
and committed
control,
of Health and Human Services for
Department
custody,
Respondent
appealed, arguing
and treatment.
admitting
expert
that
the trial court erred in
certain
Frye hearing.
conducting
a
See
without
first
(D.C.
1923).
States,
BACKGROUND 20, 2001, a February petition On the State filed respondent Department have committed Health Human a sexually person. and Services as violent The a of commit- petition alleged respondent history has offenses, ting sexually including violent a 1988 convic- aggravated tion for the criminal sexual abuse of a child ag- under the of 13 and a for the age 1992 conviction criminal gravated age sexual assault of a child under the In respondent pleaded guilty 13. to the criminal 13-year-old sexual assault of his and stepdaughter was years sentenced to 10 for that prison. exchange guilty plea, agreed State to dismiss two additional charges aggravated criminal sexual assault that were pending against respondent, one involving 13-year-old girl involving 14-year-old other The girl. peti- tion further alleged respondent was scheduled prison 21, 2001, release from on February and that he suffers from disorders, numerous mental including paraphilia disorder, antisocial personality that make it substantially probable again that he will engage acts of sexual violence.
A commenced, bench trial respondent and filed a mo- tion in limine witnesses, as to the State’s expert two Dr. Jacqueline N. Buck and Dr. Paul J. Heaton. Dr. Buck and Dr. Heaton are clinical psychologists who evaluated respondent and were to prepared testify respondent that a sexually violent person by sup- as defined the Act. In port motion, respondent that, his argued preparing their opinions, Dr. Buck and Dr. upon Heaton relied instruments, certain actuarial risk assessment including the Minnesota Sex Offender Screening Tool—Revised (MnSOST-R), Static-99, the Violent Risk Assessment (VRAG), Guide and the Sex Offender Risk Assessment (SORAG). Guide According to respondent, actuarial risk assessment is a novel scientific methodology yet that has general to gain acceptance in the psychological and argued, Accordingly, respondent communities. psychiatric actuarial risk assess- upon based any expert In response, excluded under the State Frye. ment must be (1) bit are not the least argued principles that actuarial (2) not to and even subject Frye-, novel and therefore are novel, at issue are if the instruments particular in the relevant they gained general acceptance have The trial and communities. psychological psychiatric motion, State, respondent’s denied agreed court with testify. to Dr. Buck and Dr. Heaton and allowed a licensed clinical Dr. Buck testified that she is evaluation unit of by special psychologist employed (Department). of Corrections Department the Illinois assigned respon- Dr. Buck was to evaluate capacity, for civil eligible whether he would be dent and determine his release from following under the Act commitment of the began with review prison. Dr. Buck’s evaluation convictions. respondent’s file for each of several master relating of the records The master file includes all conviction, criminal including police reports, particular records, records, any psychologi- Department court reviewing After the master evaluations. psychiatric cal or psychologists other files, Dr. Buck met with the three evaluations unit Department’s special employed agreed All psychologists case. four respondent’s to discuss for civil com- to fit the criteria respondent appeared that be face-to-face interview should mitment and that a for 90 respondent Buck interviewed conducted. Dr. Correctional Center. Big Muddy at the River minutes respon- her review of both the interview and Based respondent suffers files, Dr. Buck concluded dent’s environ- a controlled from alcohol abuse paraphilia, with narcis- ment, disorder personality and antisocial Buck, these mental According to Dr. sistic tendencies. emotional and volitional “affect a person’s disorders in acts of engage person capacity predispose *4 violence.” sexual
Dr. Buck’s evaluation also an included assessment of respondent’s probability of reoffending. She first used a personality test called the Hare Psychopathy Checklist— According Buck, Revised. to Dr. respondent scored a 32 test, placing him in category persons a who are two to four times likely more to reoffend with acts of violence.
Dr. Buck then used a number of actuarial risk assess- instruments, ment including MnSOST-R, the Static- VRAG, the SORAG, and the Hanson and Bussiere meta-analysis. The MnSOST-R was developed using a group of 256 sex offenders who were followed for six years after their release from the Department Minnesota of Corrections. gave Dr. Buck respondent a score of 13 on the MnSOST-R, places which him in the category of of- fenders having an 88% chance of reoffending within six years. The Static-99 is based study of thousands of sex offenders from England, Canada, and the United States. According Buck, to Dr. the creators of the regard Static-99 a score of higher six or being as “a very high risk.” Dr. gave Buck respondent a seven, score of which him places “in the top percent twelve of persons who were scored on this tool and who sexually reoff- ended.” The VRAG is an instrument designed to predict reoffenders, violent opposed to sexual reoffenders. On VRAG, Dr. Buck gave respondent a score of which places him in the category of offenders having 55% chance of reoffending within years and a 64% chance of reoffending within years. SORAG, On the examines the risk of sexual recidivism, Dr. Buck gave respondent a score of placed “which him at the 98th percentile in terms of risk to reoffend.” The Hanson and Bussiere meta-analysis was derived from a review of 51 published studies, which collectively approxi- covered 28,000 mately convicted and released sex offenders. The study evaluated more than 100 variables and identified *5 of significant that are in terms statistically
those to reoff- likely sexually offenders who are distinguishing unlikely sexually from who are to reoffend. end offenders Buck, “has a of risk According respondent to Dr. number study.” that from the factors stem opinion Dr. Buck concluded her with the that, community, if to the it is released respondent he ad- probable that will reoffend with substantially ditional of sexual violence. acts
Dr. he is a clinical psychologist Heaton testified that Ltd., Chicago, in Psychologists, Affiliated employed by of has with the Illinois Department which contracted in provide to assessments psychological Human Services begins Act. each assess- connection Dr. Heaton with documents, including of all ment with a review available records, records, and file, master medical school battery He then administers a evaluations. psychological tests, comprehen- which is followed a psychological all of the Finally, compiling clinical interview. after sive information, any as available actuarial collected well data, Dr. writes his evaluation. Heaton respon- testing with and
Following his interview dent, diagnosed respondent paraphilia, Dr. with Heaton disorder, all of abuse, personality and antisocial alcohol capacity and emotional volitional person’s which affect a to commit acts sexual person and that predispose actuarial then several employed Dr. Heaton violence. reoff- probability of respondent’s to assess instruments identi- meta-analysis Hanson and Bussiere ending. The clinical reinforced his fied risk factors several that, Static-99, Dr. Heaton testified On the impressions. higher” “a little bit although respondent Dr. Buck scored respon- likewise placed he Dr. Heaton’s score did, than to who found “in of individuals were category dent MnSOST-R, Dr. On the high of reoffense.” have risk placed a score gave respondent Heaton range respondent representing high “in risk for reoffense.” Based respondent both his clinical evaluation data, and the Dr. Heaton concluded respondent suffers from mental disorders that predispose sexually ways him to act in and that violent he therefore meets the criteria for commitment under the Act. point, respondent rested,
At State put any declined evidence. The trial court found respondent sexually person to be a violent under Act Department and committed him the of Health and Human Services care treatment a secured facil- ity.
Respondent appealed, part arguing that the trial *6 admitting in court erred the of Dr. Buck and hearing. conducting Frye Rely Dr. Heaton without first ing upon appellate People Taylor, the in court’s decision v. (2002), App. agreed appellate 335 Ill. 3d 965 the court respondent, judgment, with reversed the trial court’s proceedings. remanded the cause further No. 5—02— 23). (unpublished Supreme under Court Rule We petition appeal. allowed the State’s for leave to 177 Ill. 315(a). 2d R.
DISCUSSION
Although
by
parties,
begin
not raised
the
we wish by clarifying
appropriate
our discussion
the
standard of
Frye rulings.
trial
review for a
court’s
expert testimony
Illinois,
the admission of
is
governed by
expressed Frye
the standard first
in
v. United
(D.C.
1923).
States,
F.
293 1013
Cir.
Central
Donaldson v.
(2002).
Co.,
63,
Illinois Public Service
199 Ill. 2d
76-77
Commonly
“general acceptance”
Frye
called
test,
the
standard dictates that scientific evidence is
at
admissible
only
methodology
upon
principle
trial
if the
or scientific
opinion
“sufficiently
which the
is
is
based
established to
general
gained
acceptance
particular
have
field in
context,
belongs.” Frye,
at 1014. In this
which it
293 F.
not mean universal
ac
“general
does
acceptance”
methodology
it
not
that
ceptance,
require
does
consensus, or
by unanimity,
even
question
accepted
be
Donaldson,
Historically, this court has reviewing Frye when abuse of discretion standard board Illinois Public v. Central Donaldson See, e.g., rulings. Miller, Co., 199 Ill. 2d (2002); People Service consideration, we Ill. After careful is advocated better that approach believe that Miller special in her concur Justice McMorrow Chief may rence, namely, reviewing rely upon courts not trial record to part materials were so, if hearing and, required determine whether a ac generally technique issue whether scientific Miller, community. See in the scientific cepted relevant *7 (McMorrow, J., concurring); see also 2d at 173 Ill. (McMorrow, J, Donaldson, 2d at concur 199 Ill. 104-07 J.). Garman, hereby adopt Accordingly, we ring, joined to the trial court’s respect review with a dual standard of The testimony. decision of scientific expert admission qualified an witness is expert scientific whether area, proffered whether in a testify subject case, in in a remains particular is relevant of The sound discretion the trial court. trial court’s however, subject to de novo review. In analysis, now conducting review, such de novo court reviewing may only also, consider not the trial court record but where record, including appropriate, legal sources outside articles, opinions and scientific as well as court from (McMor jurisdictions. Miller, other See 173 Ill. at 203 row, J., concurring). explained
As Chief Justice
in
correctly
McMorrow
Miller,
for de
allowing
novo review this context makes
reasons,
sense for
of
“is
several
foremost
the fact
general
any
that the
acceptance
particu
issue transcends
lar dispute.”
Miller,
(McMorrow, J.,
See
173 Ill. 2d
at
“
concurring).
Indeed,
question
general
‘[t]he
of
ac
ceptance of a
technique,
referring
scientific
to only
while
one
criteria for
of
admissibility
expert testimony,
in another
particular
inquiry, for,
sense transcends that
in attempting to
general acceptance
establish such
hand,
purposes
the case at
the proponent will also be
asking the court to
jurisdiction
establish the law the
” Miller,
for future cases.’
2d at
(McMorrow,
Ill.
J., concurring),
States,
quoting Jones v. United
548 A.2d
(D.C.
1988).
35, 40
App.
Application of less than a de
novo standard
to an
review
issue that
transcends
invariably
individual cases
leads to inconsistent
treat
of similarly
Miller,
ment
situated claims. See
173 Ill. 2d
(McMorrow, J.,
at
concurring).
204-05
Because “[t]he
general
acceptance
a scientific technique does not
change
another,”
legal
from one courtroom to
assess
of that general acceptance
change
ment
not
should
from
(McMor
Miller,
court to court either.
als outside the trial record problematic. Miller, (McMorrow, J., See 173 Ill. 2d
532
standard,
Frye
the trial court
is
concurring).
Under the
validity
to
the
of a particular
not asked
determine
Rather,
responsibility
the court’s
technique.
scientific
nonexistence,
existence,
general
or
to determine
community regarding
in
consensus
the relevant scientific
“
technique.
reliability
‘Accordingly,
because
votes,
primarily
counting
the focus is
scientists’
rather
a
verifying
than on
the soundness of
scientific conclu
sion,
will not be the concerns about witness cred
there
normally
citations to
ibility
hearsay
associated with
or
authors cannot be
empirical
scientific studies whose
” Miller,
Ill.
at
or cross-examined.’
173
2d
205
observed
Jones,
(McMorrow, J., concurring), quoting
Significantly, court novo the de utility implicitly acknowledged context, Frye when to purporting even standard standard. In both of those apply an abuse of discretion to cases, the trial court record as this court went outside Miller, Frye ruling. In court’s validity sess the trial court relied numerous example, expressly for been journal court decisions articles had hearing.” the pretrial “[s]ince the time of published Miller, Donaldson, had Ill. the court 173 2d 189. very definition of the record to ascertain go outside Donaldson, Ill. 2d at principle at issue. 199 the scientific de Thus, today’s formally endorse 82 n.2. decision Frye novo standard for rulings departure not so much it is a existing analytical from court’s framework this analytical framework under which recognition sometime, albeit under the operating court has been wrong name. supreme note that several other state
Finally, we reviewing a de novo standard when employ courts Tankersley, 191 Ariz. 359, 365, State v. See, e.g., rulings. Du v. E.I. Pont Castillo (1998); 486, 492 956 P.2d
533 (Fla. Co., 2003); 1264, De Nemours & 854 1268 So. 576, 573, 952, State v. 268 Kan. P.2d Shively, (2000); State, 191, n.5, Wilson v. 370 Md. 803 A.2d (2002); 1040 n.5 Bailey, State v. 677 N.W.2d (Minn. 2004); 117, 167, State v. Harvey, N.J. (1997); Gore, A.2d 2d 288, State 143 Wash. *9 262, 271 P.3d Turning hand, to the now case at are asked we to assessment, decide whether actuarial risk by as utilized Heaton, Dr. Buck and Dr. is admissible under Frye. The appellate court sharply question. is divided One view is represented People Taylor, App. Ill. 3d (2002). In present in Taylor, case, as the the trial court held that the actuarial issue, instruments at includ the ing Static-99, MnSOST-R and the were not scientific methodologies subject Frye. to Ill. Taylor, 335 3d at App. 972. In reversing, the Second District of the appellate court first stated:
“Whether these tools are psychological viewed as tests or instruments, they certainly actuarial constitute a scientific methodology predicting sexual offender recidivism. As a methodology yet adopted such has to be in a court Illinois, proceeding in obligated the State was to show that these acceptance instruments gained have in the relevant community scientific required Frye.” under Taylor, 335 App. Ill. 3d at 977.
The next question became whether the State had met its burden of proving that actuarial risk assessment has gained general acceptance in psychological and psychiatric communities. Taylor, App. 335 Ill. 3d at 977. The court held that it had Although not. the court conceded “many and psychologists psychiatrists utilize these predict instruments to whether a sexual of reoffend,” fender likely the court remained con vinced that “the in experimental instruments are still stages and that the of validity these instruments has not Taylor, been established.” 335 Ill. App. at 978. The published court was most concerned about absence concerning validity studies these peer-reviewed instruments, steps as such studies “are important methodology by psychological of a new acceptance community.” Taylor, 335 Ill. 3d at 978. App. by In re Detention represented
The
view is
opposite
Erbe,
(2003),
Ill.
the Fourth
3d 350
App.
(1)
not a
District held that
actuarial
risk assessment
(2)
if
Frye,
subject
method
even
it
novel scientific
Erbe,
is,
general acceptance
it meets the
test.
the court
Frye inquiry,
step
examined each
methodically
based
concluding
step
each
First,
is admissible.
the court
actuarial
MnSOST-R,
held
instruments
such as the
that actuarial
not
Static-99, and the VRAG “do
to involve
purport
method,
ap
test
to which
principle,
scientific
or
Erbe,
Rather,
these instru
App.
344 Ill.
3d at 364.
plies.”
“
organiz
simply
ments
‘are
tables —methods
”
of historical data.’
ing
interpreting
collection
In re Commitment
Erbe,
quoting
Ill.
3d at
App.
*10
507, 540,
72,
(2001),
A.2d
92
of R.S., 339 N.J.
Super.
773
(2002).
134,
The court
then
aff’d,
173
After careful
agree
emphatically
we
that,
with Erbe’s conclusion
whether or not actuarial
subject
to Frye, there is no question
it
generally accepted by
professionals who assess
sexually violent offenders and therefore
is perfectly
admissible
a court of law.
writing,
As of this
experts
at least
rely
19 other states
upon actuarial
risk assess
in forming
ment
their
sex
opinions on
offenders’ risks of
recidivism. See State ex rel. Romley
Fields,
v.
201 Ariz.
321, 328,
82,
(2001);
35 P.3d
Therrian,
89
People v.
113
609, 614-16,
Cal.
4th
App.
Rptr.
415,
Cal.
3d
419-20
(2003);
(Fla.
Roeling
State,
1234,
v.
880 So.
1238-40
2004);
App.
Holtz,
In re Detention
613,
653 N.W.2d
(Iowa
2002); In
App.
Teer,
re
&Care
Treatment
No.
(Kan.
2004)
89,652, slip op. at 3-4
App.
(unpublished
order); Commonwealth
032449A,
v.
No.
Wright,
slip op.
(Mass.
at 1
2004);
Super.
In re Risk Level Determination
(Minn.
of R.B.P.,
351,
2002);
N.W.2d
353-56
App.
God
(Mo.
State,
dard v.
25779, slip
No.
at 5
op.
2004);
App.
362,
State v. Legg,
366,
648,
319 Mont.
(2004);
84 P.3d
Slansky
Patrol,
360,
v. Nebraska
370-75,
State
268 Neb.
335,
(2004);
685 N.W2d
345-49
In re
of R.S.,
Commitment
134, 136-37,
N.J.
801 A.2d
(2002);
220-21
People
(mem.
(2004)
Girup,
A.D.3d
207, 560, P.3d 564-65 re Care Treat 66 Tucker, 466, 719, 469, 578 S.E.2d 721 ment 353 S.C. of (2003); Morales, 288, 98 291 re Commitment S.W.3d (Tex. Thorell, 2003); In 149 Ct. re Detention App. (2003); 753-56, 708, In re 724, 2d 72 P.2d 724-25 Wash. 387, Tainter, 399, 655 259 Wis. 2d N.W.2d Commitment of 538, 544 directly have ad
Significantly, eight these states that Frye concluded either Frye question dressed the or that actuarial risk assessment inapplicable is acceptance general satisfies the actuarial risk assessment 328, Ariz. P.3d at 89 at Romley, standard. See at Therrian, 113 4th 614- App. not Cal. (Frye applicable); applicable); not Roel Rptr. (Frye 6 Cal. 3d at 419-20 standard (general acceptance 2d at 1238-40 880 So. ing, test met); Holtz, (general acceptance at 619 N.W2d Goddard, test met); op. (general acceptance at 5 slip 136-37, 220-21 at 801 A.2d at met); R.S., 173 N.J. at met); Thorell, 149 2d test Wash. acceptance (general met); test 753-56, acceptance at (general 72 P.2d 724-25 (general Tainter, 399, 655 at 544 2d at N.W.2d 259 Wis. met). noting also test It worth acceptance an instru exclusively is not actuarial it rely upon State; experts offender ment 4th Calhoun, App. 118 Cal. See, v. e.g., People as well. In re Deten (2004); 519, 522-23, Rptr. 13 Cal. 3d (2000) (accord 282, 290 Walker, 314 Ill. 3d App. tion of clear in very “the expert, research respondent’s ing of the risk predictions the most accurate stating that assess are those based future offenses Mont, at 84 P.3d of probability”); Legg, ments 144, 150-53, Purser, 3d App. Ohio 651; State v. at McKinnis, (2003); 153 Ohio 1053, 1057-59 791 N.E.2d State, 661-62, 165-66; Zimmer at 795 N.E.2d App. 2004) (Tex. 03—01253—CR, App. op. at slip No. 05 — order). (unpublished
537 course, exclusively that recognize, “relying of We judicial general decisions to establish scientific upon prior ‘ ’ can a ritual” if the acceptance underlying be “hollow of scientific has not acceptance adequately issue been (2000) Basler, v. litigated.” 193 Ill. 2d 554 People (McMorrow, J., dissenting), Kirk, quoting People (1997), 1 Strong, Ill. J. McCor App. quoting (4th 1992). § 203, mick on Evidence n.20 ed. This however, here, a as the general acceptance is not concern of been thoroughly actuarial risk assessment has litigated states, il several several the above citations In Roeling, example, by lustrate. for the court began examining of the four expert psychologists who testified at trial:
“All of the
experts except
by appellant
one offered
they
basis;
regular
testified that
use such
instruments on
they
generally accepted
are
clinical
among
forensic
psychologists
sexually
who evaluate persons alleged to be
predators, provided
violent
they
conjunction
are
used
(as
with a clinical
testifying
assessment
those
in appel-
did);
lant’s case
and that the use of risk-assessment
instru-
in conjunction
ments
awith
clinical assessment
awas
superior
evaluating
method of
an individual to
reliance
a clinical assessment
alone. Even appellant’s
expert
conceded that
being
such instruments were
used ‘with
great
by
frequency
people doing
evaluations’;
these
an
only
evaluation based on
a clinical assessment
(but
than)
equal
would at best be
no
pure
better
approach.”
actuarial
Roeling,
Next, the court exhaustively examined the academic literature, which opinions confirms that “[t]he relied *** the trial court are consistent with conclu- sions reached by a number of other psychologists, includ- ing those who have developed tools and conducted cross-validation and meta-analyses to confirm their reliability.” So. Roeling, 880 2d at J. citing & Murphy, Becker W Know What We and Do Not Know About Assessing and Sex Treating Offenders, Psychol. (1998); & 116 D. Pol’y Epperson,
Pub. L. Cross-Validation Tool-Revised, Sex Screening the Minnesota Offender (November Presentation, 3, 2000); Diego, San ATSA CA Grann, M. Actuarial Assessment Risk Violence: Predictive the VRAG and the Historical Part Validity of HCR-20, (2000); 27 Crim. Just. & Behav. 97 W. Meehl, E Comparative Efficiency Grove & Informal (Mechanical, and Formal (Subjective, Impressionistic) Prediction The Clinical- Algorithmic) Procedures: Controversy, Psychol. & 293 Pol’y Statistical Pub. L. Hanson, (1996); R. What Do WeKnow About Sex Offender (1998); Assessment?, Pol’y L. 50 Psychol. Risk Pub. & *13 Thornton, Improving R. Hanson & D. Risk Assessments A Three Actuarial Comparison Sex Offenders: of for (2000); M. Scales, 24 L. Hum. Behav. 119 R. Hanson & & A Bussiere, Sexual Predicting Relapse: Meta-Analysis of Studies, Consulting of & Recidivism J. Clini- Offender Harris, (1998); A. Psychol. cal R. Hanson & Where Intervene?: Predictors Sexual Dynamic Should We of Of- (2000); Recidivism, 27 & Behav. 6 R. Crim. Just. fense the Hare, Validity and the Predictive Psychopathy L. An 18 Behav. Sci. & Perspective, PCL-R: International (2000); Harris, Risk Management and Appraisal G. Criminal Justice Aggressors: Implications Sexual for (1998); & M. Rice & G. Psychol. Pol’y Pub. L. 73 Policy, Harris, and the Violence Cross-Validation Extension of Molesters and Rapists, Guide Child Appraisal Risk (1997). Lastly, the court 21 L. & Hum. Behav. 231 concerning the jurisprudence the nationwide surveyed upon the admissibility testimony part based expert to the According court: use of actuarial risk assessment. testimony as a has such inadmissible “Not one court held Rather, has been over whether matter of the debate law. Roeling, test.” 880 So. testimony pass Frye must 2d at 1239. ultimately information, all this the court on
Based regarding “expert opinion testimony concluded violence in the future propensity to commit acts sexual [RRASOR, in part which of the Static-99 is based use MnSOST-R] and risk-assessment instruments” satisfies Roeling, 2d at test. 880 So. 1239.1 identify importantly, any
As
we were unable to
state
expert
outside of Illinois in
based
which
actuarial
assessment
deemed inadmissible on
risk
was
fact, in
question
of sex offender
In
several
recidivism.
jurisdictions
by
risk assessment
is mandated
regulation.
York,
either
or
In
for example,
statute
New
Registration
the Sex Offender
Act
Board of
creates the
(the Board),
Examiners of
is charged
Sex Offenders
with
“guidelines
procedures
developing
to assess the
risk of a
repeat
by [sex offenders]
offense
threat
§§
to the
N.Y.
posed
public safety.”
Correct. Law 168—
(5)
2003).
1(1),
(McKinney
guidelines
Such
must be based
upon certain risk
factors
defined
specifically
1(5)
legislature.
§
Correct. Law
(McKinney
N.Y.
168—
2003).
mandate,
response
created an
Board
objective
instrument,
which considers 15
risk
assigns
factors and
a numerical value to the exist
ence of certain circumstances
each
regarding
specified
factor.
v. Salaam,
See
People
729-30,
Misc. 2d
(N.Y.
1997)
666 N.Y.S.2d
883-84
Sup. Ct.
(discussing
instrument).
history of the risk assessment
These values
are then totaled to arrive
offender’s presumptive
Salaam,
risk
729-30,
level.
2d at
Misc.
666 N.Y.S.2d
*14
at
less,
883-84. Where the total
is
or
points
score
(low risk);
offender is
one
presumptively level
more than
70 points but less than 110
he
points,
presumptively
1 Similarly thorough analyses can be found
the following
decisions,
rely
all
which
expert
some
combination
testimony,
literature,
academic
jurisprudential
and
nationwide
clearly
question: Holtz,
consensus that
exists on this
653 N.W2d at
619; Erbe,
364-72;
App.
Goddard,
5; R.S.,
slip op.
344 Ill.
3d at
at
136-37,
220-21;
ell,
Finally, we note that the academic literature contains many confirming general acceptance articles by professionals risk assessment who assess In one sexually violent offenders for risk recidivism. article, the authors maintain that actuarial assess- risk technique, ment “is a state-of-the-art and courts should it employed major insist be as a instrument of risk 2 Other states that mandate the use of actuarial risk assess (Ala. 25—33(6) (2004) (direct § ment include Alabama Code 12— ing sentencing develop commission to risk assessment instrument (Colo. study felons)); based on a of Alabama Colorado Rev. Stat. 3—414.5(1)(a)(IV)(2004) “sexually § (defining preda violent 18— tor” in screening terms of offender’s on risk results assessment (Fla. 25.001(2)(b) instrument)); Florida Admin. Code R. 65E — (2004) (mandating sexually use of predator Static-99 in violent (Neb. evaluations)); Regs. Nebraska Admin. Rs. & tit. ch. (2004) 013.02, §§ (creating 013.07 sex offender risk assessment (Nev. (2) instrument)); 179D.720(1), §§ Nevada Rev. Stat. Ann. (Lexis 2001) (directing attorney general to establish factor-based guidelines assessing recidivism)); for risk of sex offender New (N.J. 8(a) (2004) Jersey § (directing attorney Rev. Stat. 2C:7 — general develop procedures assessing factor-based risk of sex (N.M. recidivism)); § offender Mexico New Stat. Ann. 9—3— (Michie 13(D)(4) 2004) (directing management sex offender board (Or. tool)); to create a screening Oregon Admin. R. (2004) (mandating 255—060—0011 predatory use of Static-99 in (R.I. evaluations)); § sex offender Rhode Island Gen. 11— Laws 6(1)(b) 2003) (Supp. (directing sex offender board of review 37.1— to use a sexually “validated risk assessment instrument” in violent (Tex. predator evaluations)); Texas Crim. Proc. Code Ann. art. (West 2004) Supp. 62.035 (directing risk assessment review com “develop among existing mittee to or select from tools a sex of (Va. screening tool”)); Virginia § fender Code Ann. 37.1— (Lexis 70.4(C) 2004) Supp. (directing department of corrections to sexually evaluate using violent either Rapid offenders Risk As sessment for Sexual comparable, Offender Recidivism or “a instrument”)). scientifically validated Forensic Use Prentky, R. E. Janus &
assessment.” Accuracy, with Sex Actuarial Risk Assessment Offenders: Accountability, 40 Am. Crim. L. Rev. Admissibility “[r]e- article notes that 1443, 1445 This same *16 urge ‘complete replacement researchers spected methods,’ suggest and with actuarial existing practice methods, are actuarial ones that the use of clinical where ” Am. L. Rev. at available, 40 Crim. would be ‘unethical.’ 1485, Quinsey, Appraising Offenders: quoting V Violent Meehl, (1998); & P Risk 171 W. Grove Managing and (Subjective, Impres- Efficiency Comparative of Informal sionistic) (Mechanical, Predic- Algorithmic) and Formal Controversy, tion Procedures: The Clinical-Statistical (1996). go The authors Pol’y & L. Psychol. Pub. explain: on to *** is not novel. It superiority of actuarial principle “The acceptance in extensively, and has broad has been tested literature, general, specific in the literature both in and underly- Similarly, the offending. science concerning sexual ap- theory and its ARA not new. Statistical decision ing fifty around for judgment human have been plication to applied been in numer- methodology has years. The same contexts, forecasting, law ous, including weather diverse determinations, admissions, disability predicting school wines, predict- and vintage for red Bordeaux quality of the L. in houses.” 40 Am. Crim. quality opera of sound ing 1486. Rev. at assessments “[risk] conclude
Ultimately, the authors scientifically credible the most conducted in should be weight of and that possible” “[t]he and reliable fashion of actuarial assess- superiority to the points evidence 40 Am. of risk.” clinical assessment of risk over ment L. Rev. at 1498. Crim. and clini- article, a certified forensic another board “a describes psychologist
cal analysis, risk of violence in the science leap” quantum and clinical of actuarial combination noting leading forensic commonly advocated methods “is violence in the course routinely predict who practitioners Hall, & H. Busi- Risky of their forensic work.” C. Mee Hawaii, U. of Haw. Assessing Dangerousness ness: (2001). psychologist L. Another forensic Rev. increasingly writes that “overall research has revealed *** predic- that actuarial risk instruments exhibit more judgment and than the clinical reliability validity tive and alone” and that psychologists psychiatrists “[i]n studies, variety wide medical and social science consistently surpass actuarial assessments meet or Fabian, of clinical accuracy assessments.” J. Kansas ” Hendricks, “Mental Beyond: Abnormality, Crane Dangerousness”: “Sexual Volitional vs. Emotional and the Abnormality Community Safety Debate Between Liberties, and Civil 29 Wm. Mitchell L. Rev.
(2003), Simmons, citing N. Hilton & J. The Influence of Actuarial Risk Assessment in Clinical Judgments Tribunal Decisions about Disordered Mentally Offenders in Maximum Security, L. & Hum. Behav. 394 *17 creators, the recently, More Static-99’s R. Karl Hanson *** Thornton, and David wrote that “Static-99 has been widely adopted as a of measure sex offense recidivism risk, jurisdictions with routine applications as diverse Sweden, Texas, R. Hanson & D. Thorn- Taiwan.” ton, Static-2002, Notes on the Development User Report of 2003-01, Department No. of the Solicitor General Canada
Taking together law, all of this case the statu- —the law, tory and the academic literature —we are more than gained convinced that actuarial risk assessment has general acceptance psychological in the and psychiatric communities. We therefore hold that the trial court properly admitted the of Dr. expert testimony Buck and Heaton, Dr. which relied in part upon actuarial risk as- sessment.
CONCLUSION foregoing reasons, For the the the judgment appel- judgment the circuit reversed, and the late court is court is affirmed. judgment
Appellate reversed; court judgment circuit court affirmed. part took no in the consider- JUSTICE KARMEIER ation or decision of this case. dissenting: FREEMAN,
JUSTICE join majority’s disposition of this case. I cannot entirely par- majority on issues the decides this case The ignores brief, the doctrine of stare decisis did not ties doing so. against in the civil the evidence defendant Much of against proceeding him was based commitment filed a motion in Defendant “actuarial risk assessment.” methodology, arguing a novel that this was limine holding Frye not admit without the circuit court should hearing. hearing Frye was maintained that no The State principles” required, are not novel. “actuarial because argued Alternatively, if actuarial risk that even State requirement Frye novel, it satisfied assessment was agreed acceptance. general The circuit court with hearing required Frye and did not rule was State that no argument risk as- on the State’s alternate Frye appellate passed The court test. sessment failing holding circuit court erred in reversed, that the Frye hearing. hold a majority reversing appellate forth court,
rightly is one “not discussed that the first issue admits appropriate parties,” is, “the standard raised rulings.” 213 Ill. 2d at for a trial court’s of review wary ought general Initially, to be court in 529. addressing sponte, the benefit of brief without issues sua *18 parties. ing by af case the State In the instant the assumption unquestioned firmatively relies on the discretion,” and review is “abuse the standard of proper dispute that is the not this defendant does parties failing to can one fault standard. Nor argue given review, court’s unam this the standard biguous review issues recent statement “We Donaldson v. under an of discretion standard.” abuse Co., 63, Illinois Public Service 199 Ill. 2d Central (2002). People Miller, 173 Ill. 2d 187-88 See also v. (1996) (“The expert to admit decision whether technique is committed about new scientific *** to the sound discretion of the trial court the trial discretion”). court did not abuse its Given the fact that the standard of review has not put parties, by been into issue I am troubled interject court’s decision to the issue on its own. The majority explain so, does not its decision to do but certainly importance issue cannot be the up rationale, case is sure to come the future in parties actually subject. People which the address the See (2003) (Thomas, Paz, J., v. De La 204 Ill. 2d (“the concurring) majority being disingenuous if it is suggesting importance that the of the issue mandates case”). particular that we resolve it in this And the compels opposite approach. doctrine of stare decisis an “ According powerful doctrine, to this ‘absent counter vailing ought considerations, like cases to be decided ” (2002) (Mc People Tisdel, Ill. alike.’ dissenting, joined by Morrow, J., Kilbride, Freeman and JJ.), § quoting Appellate Am. Jur. 2d Review only do Not we address the standard review without having parties it, even mentioned we reverse our precedent an recent without even so much as own acknowledgment perplexing,
of stare decisis. This is
say
thing
majority
if
I
the least. It would be one
question
there
differed on
of whether
is cause
particular
overcome the doctrine of stare decisis
Certainly
there exists
case.
there are occasions which
*19
prior precedent,
sufficient
reason to overturn
notwith
Coleman,
e.g., People
(see,
the doctrine
standing
(1998)
Ill. 2d
(changing
378-89
standard
review
petitions
Hearing
dismissals of
under Post-Conviction
Act)),
departure
and whether sufficient reason exists for a
from stare
decisis
any given
case
a question
might
differ. But the
which reasonable minds
sometimes
the
majority fails even to admit that
doctrine exists.
majority
This cannot be
the
is unaware of
because
Dissenting
the doctrine.
members of this court have
majorities
taken
to remind
of the doctrine’s exist
pains
including
by
ence in recent case
cases authored
the
law —
in the instant
very justice
majority
who writes
the
Tisdel,
(McMorrow, J.,
e.g.,
See,
case.
The whether to the subject Frye, only actuarial risk assessment is Instead, question major- decided the lower courts. the ity that the to this implicitly question determines answer irrelevant, actuarial risk assessment satisfies because only pos- test. I note that this ratio decendi is Frye of the earlier to the standard of change sible because discretion, review. If the standard of review is abuse of as parties recently assume and as this court has held as years ago, would have to determine whether two we to If it is not subject Frye. risk assessment subject affirm. But if it is to subject Frye, we would there would no conclusion other than Frye, possible be failing that circuit court discretion in to hold a abused its Frye hearing, Frye-related as there is no evidence we could review to affirm the circuit court’s conclusion —I determining note that that actuarial test, materi- passes Frye majority wholly relies on als which the circuit court never considered.
I no opinion state whether actuarial risk assess- ought ment in an I pass appropriate test case. simply proper believe this is not the case to decide issue, given major- the tortuous down path Illinois ity propels doing law so. joins
JUSTICE KILBRIDE in this dissent. (M.R. 19565) IN THE COURT OF SUPREME ILLINOIS In re Collective Bargaining
ORDER MATTER, having come the court THIS before supervisory July of the order entered on reconsideration 1, 2004; COURT, further examined the having
THIS constitu- implementa- tional implications proceeding with *21 order; and July tion of the COURT, having proceeding THIS concluded that with 1, 2004, July of the order would implementation separation powers principles undermine the articulated Illinois v. State & in Administrative Courts Office of Union, Teamsters, & Lo Municipal Helpers Chauffeurs (1995); Ill. 2d 180 cal 1, 2004, July IT HEREBY ORDERED IS