Opinion
30051-09
06-30-2011
State of New York, Petitioner, v. John Suggs, Respondent.
New York State Attorney General Eric Schneiderman (Assistant Attorneys General Breda Huvane and Joseph Muia, of counsel) for the Petitioner. Mental Hygiene Legal Services (Jessica Botticelli and Deborah P. Mantell of counsel) for the Respondent.
New York State Attorney General Eric Schneiderman (Assistant Attorneys General Breda Huvane and Joseph Muia, of counsel) for the Petitioner.
Mental Hygiene Legal Services (Jessica Botticelli and Deborah P. Mantell of counsel) for the Respondent.
Daniel Conviser, J.
This decision addresses the disposition the Respondent shall be subjected to after having been found to be a Detained Sex Offender who suffers from a Mental Abnormality pursuant to Article 10 of the Mental Hygiene Law ("Article 10"). For the reasons stated below, the Court finds that the Respondent is a Dangerous Sex Offender Requiring Confinement. The Court therefore directs that the Respondent shall be committed to a Secure Treatment Facility for care, treatment and control until such time as he no longer requires confinement.
Statement of Facts
John Suggs was found to suffer from a Mental Abnormality under Article 10 at a jury trial presided over by this Court which concluded on January 28, 2011. The evidence from that trial was made a part of the record of the instant proceeding. At the trial, the State presented the testimony of two psychologists who opined that the Respondent suffered from a Mental Abnormality, Dr. Trica Peterson and Dr. Stuart Kirshner. The State also presented the testimony of two parole officers and introduced documentary evidence. The Respondent presented the testimony of a psychologist, Dr. Joseph Plaud, who opined that the Respondent did not suffer from a Mental Abnormality. The Respondent also presented documentary evidence. Dr. Kirshner and Dr. Plaud also testified at the instant dispositional hearing.
At the trial, Dr. Kirshner provided a summary of the Respondent's childhood, adolescent and adult history including his criminal history and history of disciplinary violations while incarcerated. Mr. Suggs's childhood and adolescent history were also extensively outlined by the United States Court of Appeals for the Second Circuit in 1978 in the case of Suggs v. Lavalle, 570 F2d 1092, cert. denied, 439 US 915 (discussed infra, hereafter the "Second Circuit decision"). The Second Circuit noted that its recounting of the early life of Mr. Suggs was based on "sketchy records based on secondhand information, or facts furnished by Suggs, whose reliability for accurately conveying information is questionable". 570 F.2d, n.4. In the Court's view, however, even assuming that not every fact in the Second Circuit's decision is completely accurate, the general outlines of Mr. Suggs's life prior to age 17 are useful in understanding the origins of his anti-social behavior. The Court therefore has taken judicial notice of the Second Circuit's decision and has used it in recounting what appear to have been some of the relevant events in Mr. Suggs's life prior to age 17.
According to the decision, Mr. Suggs's childhood "vividly reveals an unstable home environment, devoid of parental supervision and attention". 570 F.2d at 1097. Mr. Suggs shuttled between his mother and his aunt. He was found at one point at the age of three wandering the streets, after being sent by his mother to buy a loaf of bread. He had a joint of his finger amputated at the age of 4 after it was crushed by a swing and he contracted acute rheumatic fever with carditis" at the age of ten. He was an habitual truant from school and set fires to newspapers in his house on a number of occasions, but notified the fire department of those incidents and once pulled the head off a parakeet. 570 F.2d at 1097.
According to Dr. Kirshner's trial testimony Mr. Suggs was born out of wedlock and first came to the attention of the Family Court in 1958. He was involved in a burglary of a liquor store at the age of 9. At the age of ten, Mr. Suggs was placed at the Wiltwyck School for Boys, apparently in response to that burglary. According to the Second Circuit decision, after placement at Wiltwyck:
January, 25, 2011 Article 10 Trial Transcript, (hereinafter, "January 25 Trial Transcript"), p. 298.
His behavior problems continued unabated. When his mother died about a month after his admission, Suggs evidently became obsessed with the idea that the children in his dormitory were responsible for her death. In retribution he set fire to the dormitory, but did so where it would be found and no one would be hurt. On another occasion he was found packing dirt into the exhaust of a truck used to transport the children with the aim of blowing it up. At some point he became convinced that he too was responsible for his mother's death. While still at Wiltwyck, approximately at the age of eleven, he attempted suicide by drinking mercury from a thermometer.
The opinion goes on to note that the Respondent's method of establishing friendships was to engage in "assaultive behavior" and that he engaged in numerous hostile acts with students and teachers. 570 F.2d at 1097.
Mr. Suggs was then institutionalized at the Rockland psychiatric center where he was diagnosed as having some features of schizophrenia. He never returned to this facility after a Thanksgiving break and by 1965 was at the "Warwick Training School for Boys". Id. The record of the following few years is not completely clear. In 1965, at Bellevue Hospital, he was diagnosed as " not psychotic at present' but having a strong tendency in that direction". 590 F.2d at 1098 (internal quotation omitted). The Second Circuit decision indicates that Mr. Suggs subsequently attended Charles Evans Hughes high school where he was alleged to have "kidnapped" a school mate for four hours. Id. According to Dr. Kirshner's review of what appears to have been the same incident, Mr. Suggs abducted a 15 year old girl in the school lunch room with a broken bottle and forced her to accompany him to a subway station. At some point, he was again placed in a youth home and on April 22, 1968, at the age of 17, was alleged to have committed his first rape.
January 25 Trial Transcript, p.380.
On April 27, 1968, Mr. Suggs allegedly abducted a female college student in her 20's at City College in Manhattan at knife point at 11:00 A.M., forced her into a room, raped and sodomized her and stole money from her. Three days later, on April 30, 1968, the Respondent was again alleged to have abducted a young woman at knife point at City College in the early evening and stolen money from her. He was allegedly looking for a hallway with the victim when the victim recognized someone she knew, broke free and escaped.
On May 22, 1968, Mr. Suggs was alleged to have abducted a woman in her 20's from the same neighborhood, dragged her into a building, took her to the roof, raped her and stole money from her. On May 24, 1968, he was alleged to have abducted a woman in her 20's from the same neighborhood in the evening, told the victim he had a gun, took her to a landing near a roof, raped and sodomized her and stole money from her. On May 28, 1968, it was alleged that Mr. Suggs threatened a young woman in the same neighborhood with a pistol, tried to enter a building but was not able to find one, sat down on a bench with the victim and fondled her buttocks, took money from her and departed. The Respondent was arrested and indicted for each of these incidents. Mr. Suggs pled guilty on September 13, 1968 to one count of Rape in the First Degree and one count of Robbery in the First Degree in satisfaction of all of the charges in these indictments. After the plea the Court ordered psychiatric evaluations. Upon appearing before a second judge on November 6, 1968, Mr. Suggs was found to be incompetent and was committed to the Commissioner of Mental Hygiene and housed at the Matteawan State Hospital for the Criminally Insane. 570 F2d at 1100-1104. He was characterized as a "schizophrenic, paranoid type." 570 F2d at 1104. He was subsequently deemed competent by the Matteawan Superintendent and certified as competent by a third New York State trial judge on April 9, 1969. He was sentenced on his plea to two concurrent sentences of 5-15 years incarceration on June 6, 1969. Id. at 1104-1106.
January 25 Trial Transcript, pp. 303-307.
Extensive state and federal court proceedings challenging the Respondent's conviction and sentence ensured over the following ten years. These myriad proceedings are recounted in the Second Circuit's decision and will not be summarized here. In 1977, the Respondent's convictions were vacated by the grant of a writ of habeas corpus in federal district court on the ground that Mr. Suggs was incompetent at the time of his guilty pleas and was not afforded an appropriate colloquy concerning the voluntariness of those pleas. That judgment was affirmed by the Second Circuit on January 27, 1978.
The Second Circuit began its decision with an extraordinarily thoughtful rumination on the way in which society attempts to cope with individuals like John Suggs. Written 31 years ago, those thoughts, in this Court's view, continue to be highly instructive today:
This case presents an all too familiar pattern of breakdown of societal,
institutional, medical and legal failure adequately to cope with a person. Perhaps inability to solve an insoluble problem is a better description, since the intentions of those attempting to cope psychiatrists, psychologists, correction officers, judges and lawyers have in no case been untoward.
The John Suggses of life begin with an utterly crippling home environment. Early on they exhibit signs of unusual, bizarre and even destructive behaviors, often the result of traumatic experiences. Society, with humanitarian motivation, institutionalizes them, ostensibly to protect itself or them, more probably because no alternative exists. The depth of the mental/emotional problem proves too great, the numbers of Suggses too large, the resources for positive assistance too few. When released into society, criminal behavior is probable, not merely possible. A rape, a robbery, a mugging or worse ensues.
The legal system then assumes jurisdiction over the problem. Somehow the rights of the individual must be protected, while the danger to society is removed. Questions of competency to stand trial and of criminal responsibility arise. The psychiatric experts and the judges who must rule disagree; both psychiatry and law are insufficiently advanced to attain the scientific precision necessary to resolve these questions. Yet decisions have to be made. After a period of years the case is just as insoluble as it was in the beginning. 570 F.2d at 1094 (emphasis added).
Tragically, the Second Circuit's prediction about the future behavior of Mr. Suggs proved prophetic. Twenty-eight days after being released from prison in 1978, while on parole, Mr. Suggs committed another violent rape. On September 16, 1978, he was alleged to have put a choke hold on a victim at about 5:30 A.M. near Washington Square Park in Manhattan. He took the victim into the park, rubbed against her, struck her about the face and threatened her with a gun when she resisted. He took the victim to a pier on the Hudson River, dragged her by the hair up a staircase and repeatedly struck and strangled her. The victim was unconscious or semi-conscious at three points during the assault. He punched, kicked, dragged and raped her. She escaped by convincing Mr. Suggs that she wished to return to her apartment with him and then escaped when the Respondent and the victim went to a coffee shop together.
Seven days later, on September 23, 1978, Mr. Suggs was alleged to have committed another rape. He was charged with abducting a woman in Washington Square Park at 9:30 A.M., taking her to a pier on the Hudson River and raping her. He gave the woman his phone number which she in turn gave to the police. The Defendant was arrested but not indicted for this latter offense when the victim indicated she was too traumatized to go forward with the prosecution. He was convicted of the earlier rape, was sentenced to prison and was released from prison in 1992.
January 25, 2011 Trial Transcript, pp. 325-329.
He remained at liberty in the community for four years before committing another rape, again while under parole supervision. On August 4, 1996, Mr. Suggs met a student from Spain in Central Park. Mr. Suggs and the victim spent the day together and returned to Central Park late at night. Mr. Suggs began to massage the woman's back, she indicated that she did not want to have sexual relations with him and he raped her. Mr. Suggs was 45 years old at the time he committed the 1996 rape. He pled guilty to Rape in the First degree by forcible compulsion for that crime and received a determinate sentence of 12 ½ years incarceration. The State filed a petition for sex offender civil management under Article 10 against the Respondent on January 28, 2009. Mr. Suggs has not been at liberty since being apprehended for the 1996 rape. He was transferred from the State Department of Correctional Services to an Office of Mental Health (OMH) Secure Treatment Facility after the completion of his prison term.
Id. pp. 349-351.
Dr. Kirshner also related the underlying facts he had learned about a number of disciplinary infractions the Respondent had committed while incarcerated from his review of prison records. In one incident which occurred on December 31, 1989, corrections records indicated that Mr. Suggs grabbed a female corrections officer and attempted to pull her into a closet. The officer escaped. Mr. Suggs claimed that he and the officer had been involved in a consensual sexual relationship but that claim was found to be without merit by corrections authorities. In another incident in 1987 he was found lighting matches in his cell and making references to monks in Vietnam who set themselves on fire. When told to stop lighting matches by a corrections officer, he ignited some papers on his bed. Dr. Kirshner said that Mr. Suggs had refused sex offender treatment while incarcerated and was in the initial phase of sex offender treatment at the Central New York Psychiatric Center (CNYPC). [After the completion of his prison sentence, Mr. Suggs was initially confined at CNYPC and later transferred to a New York City Department of Correction facility during his trial and instant dispositional proceeding.]
Id. pp. 364-367.
During the trial, Dr. Kirshner opined that Mr. Suggs suffered from Anti-Social Personality Disorder. He also described Mr. Suggs as a "pervasive anger rapist" He said that Mr. Suggs had a problem with cannabis abuse and said he would give a "rule out" assessment of sexual sadism or other type of paraphilia. Dr. Petersen also diagnosed Mr. Suggs as suffering from Anti-Social Personality Disorder. Both witnesses, as noted supra, opined that the Respondent suffered from a Mental Abnormality pursuant to Article 10.
Id. p. 359.
Dr. Plaud opined at trial that the Respondent did not suffer from a Mental Abnormality. He said that Mr. Suggs could not be diagnosed with any sexual disorder. He also said that Mr. Suggs did not suffer from Anti-Social Personality Disorder. He further opined that even were Mr. Suggs to be diagnosed with any of these categories of disorder, it would not lead to an assessment that he was predisposed to commit a sex crime or had seriously difficulty in controlling his sexually offending behavior as required for a Mental Abnormality finding.
DISPOSITIONAL HEARING TESTIMONY
Testimony of Dr. Stuart Kirshner
Dr. Kirshner testified at the dispositional hearing that the Respondent was a Dangerous Sex Offender Requiring Confinement pursuant to Article 10. Mr. Suggs did not agree to be interviewed by Dr. Kirshner prior to either the trial or the dispositional hearing. Dr. Kirshner said that in conducting his assessment, he reviewed current literature and actuarial data concerning the likelihood of sex offenders to re-offend. In considering factors which would increase the risk that Mr. Suggs would re-offend, Dr. Kirshner said he also considered the Sex Violent Risk Assessment Guide or "SVR 20" and the SORAG.
He said that Mr. Suggs's violent criminal history and the fact that this violence first occurred at a very young age increased his risk to re-offend. He said that the Respondent's criminally offending behavior dated to when he was 13 and that his sexually offending behavior dated to when he was 17. He testified that this behavior was "ingrained" in Mr. Suggs's personality. He said that Mr. Suggs was not socialized in his early years and had a turbulent childhood. He also testified that the more arrests a person had the more his risk of committing future offenses would be. Mr. Suggs's non-violent criminal history and parole violations also increased his re-offense risk. All of the aforementioned risk factors had been found to be relevant to the risk to re-offend in actuarial studies. He said that the fact that Mr. Suggs had committed rapes while under parole supervision indicated that such supervision was not sufficient to prevent these behaviors.
With respect to the Respondent's Anti-Social Personality Disorder, Dr. Kirshner said this had emerged before the age of 15. He said that Mr. Suggs had a "total disregard for the law", "absolutely no remorse", and had displayed "irritability and aggressiveness" throughout his life. Mr. Suggs "takes what he wants when he wants it". He said that there was nothing to indicate that Mr. Suggs was any different now than he was 30 years ago, except his age, which he said could be considered as an important factor. He testified that the fact that the multiple offenses he had been alleged to have committed in both 1968 and 1978 occurred in close temporal proximity to each other in each year and the fact that these offenses involved violence increased his actuarial likelihood to re-offend.
Transcript of April 21, 2011 Dispositional Hearing, ("April 21 Hearing"), p. 21, ll. 9-12.
Id., p. 22., ll. 1-2.
Dr. Kirshner said that while the SVR 20 considered an offender's remorse or insight into his offense as a relevant factor in assessing risk, other risk assessments did not consider this factor as significant. He said that his personal view was that remorse or insight would only be relevant if it led to behavioral change. He said that Mr. Suggs had not taken responsibility for his crimes and that this was important because it was necessary as a first step in treatment to reform his behavior. Mr. Suggs continues to deny his crimes. He said that Mr. Suggs had no inclination to obtain sex offender treatment.
Dr. Kirshner testified that he had considered Mr. Suggs's current age of 59. He said that there was an ongoing argument in the scientific literature about how significant age was in assessing sex offender re-offense risk. He said that Harris and Rice , authors he had relied upon, believed that the age of onset of sexually offending behavior was more significant than an offender's current age. He said that some actuarial data had indicated that there is a decrease in offending with age, but those large group studies did not account for individual variations. He opined that Mr. Suggs's offending behaviors were not decreasing with age. He also said that a problem with the aging data is that the most dangerous of sexual offenders would not be released [so they would not be able to be included in samples of how likely older sex offenders would be to commit sex offenses in the community]. He said that sex offenders over the age of 60 were the smallest group of offenders which had been studied. He described the relationship of aging to sexual re-offense as an unsettled area where some literature did not consider it as a factor and other literature considered it to be an important factor.
The transcript notes these authors as "Harrison Rice" but the Court believes Dr. Kirshner was referring to two authors "Harris and Rice", See April 21, 2011 Transcript at 36-37.
Dr. Kirshner said that he had reviewed Dr. Plaud's report and Dr. Plaud's use of the "MATS-1" instrument created by Wollert. He said that this was a table which stratified risk by age groups. Dr. Kirshner testified that this was a concept which was being researched but was not generally accepted in the scientific community. The Wollert table is based on an article Dr. Wollert wrote in 2010 which Dr. Kirshner reviewed. The Wollert article indicates that the concept on which the MATS-1 is based is currently being researched. The stratified tables in the Wollert analysis don't differentiate between types of offenders. Dr. Kirshner said that this type of distinction would be important because the risk factors relevant to a person who raped stranger victims, for example, would be different than the risk factors of a man who offended against his 7 year old daughter.
Dr. Kirshner said that he was aware that Dr. Plaud had considered six factors in assessing the Respondent's risk but he did not know why Dr. Plaud chose these factors and not others to review. Dr. Kirshner testified that he had reviewed a March, 2010 report from a Dr. Makhuli which indicated that the Respondent had reported that he suffered from erectile dysfunction. Mr. Suggs had been referred for this medical evaluation because of frequent urination and an enlarged prostate. The diagnosis of erectile dysfunction was based solely on the self-report of Mr. Suggs and not on any objective data. He said that a sleep study in which the presence of an erection could be measured during sleep could be conducted to see if there was objective evidence of erectile dysfunction but that such a study was not done. Dr. Kirshner said that if Mr. Suggs did suffer from erectile dysfunction this would not be significant to him because that condition could be treated and because Mr. Suggs could violate women without maintaining an erection.
At one point during his testimony, Dr. Kirshner said that he understood that no sleep study had been conducted to determine whether Mr. Suggs suffered from erectile dysfunction because Mr. Suggs had refused to participate in such a study. April 21, 2011 Tr., p. 84, ll. 7-11. Dr. Kirshner provided no information, however, about how he had arrived at that understanding which led to a motion by the Respondent to strike that testimony. The Court denied that motion. The Court, however, also did not credit Dr. Kirshner's conclusion on that point since he provided no information about what that conclusion may have been based on.
Dr. Kirshner said that even if it was assumed that Mr. Suggs suffered from erectile dysfunction, that would not change his opinion that the Respondent was a Dangerous Sex Offender Requiring Confinement. He said that Mr. Suggs's crimes did not involve only sexual arousal but also involved beating and humiliating his victims. He testified that Mr. Suggs could still re-offend, could still have a sex drive and could still have a deviant sex drive even if suffering from erectile dysfunction. He said that he had reviewed Dr. Plaud's assertion that Mr. Suggs's wife would be a support system for him. Dr. Kirshner stated that he did not agree with that contention because Mr. Suggs had been married to his wife in 1996 when he committed his last rape, that his wife had brought marijuana into a correctional facility for Mr. Suggs and that, according to Mr. Suggs during an interview with Dr. Petersen in 2009, Mr. Suggs had said that his wife had consented to allow him to have sex with other women and provided him with condoms for that purpose. Dr. Kirshner reported that Mr. Suggs had said at that time that his wife could not satisfy him because of physical problems she had. This indicated to Dr. Kirshner that Mr. Suggs continued to have a sex drive.
Dr. Kirshner considered the assault of the corrections officer at the correctional facility in 1989 as significant because Mr. Suggs denied the offense and took no responsibility for it. He opined that although Mr. Suggs was older now and claimed to have physical ailments, he was no different in other respects from the person he was in 1989, 1996 or otherwise. According to Dr. Kirshner: "when he has an urge, he acts on it . . . he still doesn't have a conscience". He said that although Mr. Suggs had only one disciplinary infraction while incarcerated which involved deviant or sexual behavior this was not significant in terms of his risk to re-offend in the community. He said that a sex offender [like Mr. Suggs] had fewer potential victims in prison and was less able to perpetrate crimes because of the supervision and observation he was under. The lack of offending behavior in prison, therefore, was not a good predictor of the risk to re-offend in the community.
Id., p. 63, ll. 15-16.
In summarizing his views, Dr. Kirshner said:
In my opinion, Mr. Suggs is an extremely dangerous man. He is under no uncertain terms a serial rapist. He has beaten his victims, an offending history goes back to a very young age. And in fact, at the age of 16, he snatched a girl out of a lunch room with a broken bottle. So this goes back to adolescents, early adolescence. But the thing that's key for me, is that at no time in his life, and is it documented in the record, that he even made a gratuitous statement to say that he was sorry or that he attributed his behavior to youthful exuberance, whatever. He has never done anything else except denied and either blamed the victim, blamed the prosecutor, maligned the victim. . . . . And other than the fact that he's aged and he may have some physical infirmities, there is nothing different about him today than there was 40 years ago.
Id., p. 67, ll. 1-17.
On cross-examination, Dr. Kirshner admitted that an article which he cited in his report which he said had been published in 2011 had actually been published in 2009. He said that he was aware that Mr. Suggs had been experiencing problems with frequent urination back to 2007. Mr. Suggs has had an enlarged prostate since 2006, suffers from osteoarthritis and had a mild heart attack in the past. He suffers from hypertension, is diabetic, has knee problems and has had knee surgery. Dr. Kirshner acknowledged that he relied, in forming his opinion, in part on an article by Barbaree and Blanchard which stated that reductions in testosterone levels with aging were linked with decreases in sexual behaviors. That study also proposed that maturation should be considered as a sexual re-offense risk factor, distinct from other factors. Dr. Kirshner said that, as he had previously testified, "maturation may be related to decreasing the risk in sex offenders". Dr. Kirsnher said that the contention that decreases in sexual behaviors were correlated with decreased levels of testosterone was not supported by other studies, as far as he was aware.
Id., p. 81, ll. 18-19.
Dr. Kirshner said that family support can be significant with respect to an offender's risk to re-offend, but acknowledged that he did not investigate Mr. Suggs's current family ties. Dr. Kirshner said that one factor increasing the risk to re-offend was the increasingly severity of crimes. He said that Mr. Suggs's rape in 1978 was very violent while the 1996 rape involved a woman he had engaged in consensual behaviors with including going to a party, going to the park and rubbing her back before he raped her. Dr. Kirshner also said that Mr. Suggs received fewer disciplinary tickets as he had gotten older. He acknowledged that anti-social behavior traits may decrease with age. He agreed that there was nothing in the Diagnostic and Statistical Manual (DSM) which linked Anti-Social Personality Disorder with sex offending. He said that Anti-Social Personality Disorder did not imply that a person was a sex offender.
He agreed that a person in prison could sexually re-offend. He agreed that an offender's degree of remorse does not predict sexual re-offense. He said that denial of a crime is considered by some to predict re-offense risk and by others to not be predictive. He said that the OMH treatment program required offenders to accept responsibility to progress from the first to the second level of treatment. He explained that a basic premise of treatment for sex offending and addiction was that a person subject to treatment must acknowledge one's own deviant behavior. He cited the work of Yochelson and Samenow in support of the proposition that in order to change deviant behavior the behavior must be acknowledged.
Dr. Kirshner described this as cognitive behavioral intervention and also cited Ross and Porporino and Grandreu as examples of the use of this concept. He said that he accepted Carl Hanson as an expert in the field of sex offender recidivism and was aware that a metanalysis of studies by Hanson had found that lower remorse, denial or low victim empathy were unrelated to sexual recidivism. He also agreed that Dennis Doren was an expert in the field. In response to a question of whether he was aware that Mr. Doren had said that honesty or remorse were not related to recidivism, Dr. Kirshner explained that expressions of remorse were not related to recidivism because anyone could falsely claim to be remorseful. The critical issue was whether remorse led to behavioral change.
Dr. Kirshner agreed that Hanson had written an article which said that sex offenders released after the age of 60 showed a 3.8% recidivism rate. He was familiar with Dr. Plaud's report and that Dr. Plaud had used a statistical table called the "MATS-1" which used six questions from the Static 99. He described this MATS-1 data outlined in an article by Wollert as having "used pieces of actuarial instruments to generate that data". Upon reviewing the scoring sheet used by Dr. Plaud to derive the MATS-1, Dr. Kirshner said that it was not an accepted instrument, had not been peer reviewed and was simply a research tool used by Wollert. Dr. Kirshner said that if Mr. Suggs were placed on SIST, he would be subject to a variety of conditions including drug testing, the wearing of a GPS bracelet and supervision by a parole officer.
Id., p. 100, l. 4.
Dr. Kirshner said that denial was the sine qua non for treatment. He testified that what Mr. Suggs was doing was "beyond denial" because he depicted himself as a victim and maligned his victims. He acknowledged that the definition of a Dangerous Sex Offender Requiring Confinement did not say anything about treatment.
Testimony of Dr. Joseph J. Plaud
Dr. Plaud testified on behalf of the Respondent and was qualified as an expert in the field of psychology. He said that the focus of his entire clinical training over the past 24 years had been devoted to the evaluation and treatment of sex offenders. He proceeded to outline in detail his professional experience, education and qualifications. He evaluated Mr. Suggs's risk to re-offend and used what he called a statistical risk took in making that assessment called the MATS-1.
Dr. Plaud said that the MATS-1 was a "re-specification" of the Static 99, the most widely used actuarial risk assessment instrument and took six items from the Static 99 which were scored in the same way as that instrument. The MATS-1 then stratifies its risk percentages based on age. The age data is based on a peer reviewed publication by Richard Wollert which looked at sex offenders over an aggregate 8 year re-offense period. In describing the sample size, the transcript of Dr. Plaud's testimony indicates that he initially referred to the sample size of this study on two occasions as "over 9 thousand offenders", on one occasion as "about three hundred offenders" and on another occasion as "3 hundred re-offenders". It was not clear to the Court whether these numbers reflected different populations (that is, sample size vs. offenders who re-offended), was the result of transcription errors or had some other meaning. The results were stratified into "bins" or age cohorts with the first being 18 - 39.9, the second being 40 - 49.9, the third being 50 - 59.9 and the fourth being 60 or older. According to Dr. Plaud: "age is the single, potent, dynamic, risk factor, short of death, that we have right now in the predication of risk to re-offend" He noted that the Static 99 had recently been modified to give more weight to age in determining scores.
Id. p. 112 l.15 - p. 113, l. 3.
Id., p. 113, ll. 17-19.
Dr. Plaud said that the items deleted from the Static 99 in the MATS-1 were age (because it was accounted for in the stratification tables), whether the victim was a stranger or unrelated to the offender and whether the offender had lived with a lover for two years or more. He said that these latter factors had not been found to have a high correlation with recidivism. He said he scored Mr. Suggs using the age bin beginning at age 60, because although Mr. Suggs was not 60 he would turn 60 later in the year. He said that Mr. Suggs's recidivism risk scored conservatively was a 6.4% or a 2.7 % recidivism rate. (The Court understood this latter rate to reflect a score which was not conservative). Scoring Mr. Suggs conservatively (at 6.4%) would put him in the "high" category rather than the low or moderate category. He said that a score of "4" on the MATS-1 would mean a high score and Mr. Suggs scored a 4.
With respect to the effect of aging on recidivism, Dr. Plaud said: "I'm here to tell you, and I don't care what anybody else says, that is the predominance". He said that there were a few factors that could override the predominance of age as a predictor of recidivism. An offender could express the view, for example, that he intended to commit another sex crime or had an ongoing inability to control his behavior. This would, he said, be a rare circumstance. An offender could be evidencing current disciplinary infractions [presumably while confined] or have engaged in current sexually assaultive behavior. An offender could be in possession of pornography. He said that none of these factors were present in this case.
Id., p.116, ll. 17-19.
An offender could have an underlying psychological disorder which might provide a motive to re-offend. Dr. Plaud said that Mr. Suggs did not evidence that. He said that Mr. Suggs was a rapist whose crimes were motivated by anger in which sex is used as a tool of violence. He said that these factors were not in evidence with respect to the condition of Mr. Suggs today. The age of Mr. Suggs combined with the absence of any of these other factors meant that he could not opine that Mr. Suggs was likely to re-offend if released, even if released with no supervision. He testified that Mr. Suggs's institutional behavior did not show signs of active sexual deviance. He gave a number of examples of how such deviance might be manifested in prison including sexual assault, the possession or creation of pornography or a fixation on children and said that Mr. Suggs did not evidence any of those factors.
Dr. Plaud said that Mr. Suggs suffered from cardiovascular disease, hypertension, type 2 diabetes and an enlarged prostate, among other conditions. He opined that the greater prevalence of medical problems with aging was one of the reasons sexual re-offense decreased with age. Various hormones and neurotransmitters decrease with age, diabetes and hypertension affect sexual functioning and the ability to achieve and maintain an erection decreases with age. An enlarged prostate also reduces the ability to obtain and maintain an erection.
Dr. Plaud provided additional specific information about the number of offenders covered by the MATS-1: 9300 and said the instrument considered data from both the STATIC-99 and a New Zealand based tool called the ASRS which included approximately 4500 offenders. He said that the statistical risk that Mr. Suggs would re-offend under his scoring (a level of 4) was 6.4% over 8 years which he characterized as "extremely low risk". He opined that the offenses Mr. Suggs had committed at age 17 were not particularly predictive of his risk today. He said that an offender's age at the time of offense was not predictive of re-offense while the age of an offender at the time of release [from custody] was predictive. He said that Anti-Social Personality
Disorder is not predictive of re-offense since the vast majority of the prison population suffered from that disorder.
Dr. Plaud testified that there was a "burn out" factor applicable to Anti-Social Personality Disorder which would mitigate the disorder beginning in a person's 30's or 40's. He said that this disorder was predictive of general re-offense but not sexual re-offense and that this general recidivism risk declined with age. He spoke with Mr. Suggs's wife, Cassandra, who told him that she and Mr. Suggs's daughter want him to be released and will support him. He opined that, given the fact that Mr. Suggs had been found to suffer from a Mental Abnormality under Article 10, he could and should be supervised under Strict and Intensive Supervision and Treatment (SIST) rather than confined in a secure mental health facility. He said that while some of the 9300 offenders in the MATS-1 sample were subject to some form of supervision upon release, none were subject to SIST under New York State law. He said that SIST would be a protective factor for Mr. Suggs. He reported that he was familiar with standard SIST conditions and opined that the supervision of Mr. Suggs under SIST, limitations on where he could be and a curfew would be a check on him.
Dr. Plaud disagreed with Dr. Kirshner's conclusions. He said that there was no empirical basis for those conclusions and that the research tools Dr. Kirshner had mentioned were unclear or had not been properly scored. He said that Dr. Kirshner relied upon psychological or behavioral concepts not related to sex offender recidivism. He said that Dr. Kirshner had considered Mr. Suggs's lack of remorse in his evaluation but said that although remorse is a part of sex offender treatment it has not been shown to have any relationship to recidivism in empirical studies. He said that Mr. Suggs had a "very low risk" to re-offend sexually.
Dr. Plaud opined that the jury was incorrect in finding that Mr. Suggs suffered from a Mental Abnormality under Article 10. He said that Mr. Suggs did not have a diagnosable sexual condition which he opined would be a prerequisite to a Mental Abnormality finding under Article 10. He agreed that the MATS-1 could be described as an actuarial instrument. He said that of the roughly 9000 offenders in the MATS-1 sample, about 4600 came from a New Zealand sample called the ASRS and about 4600 from the updated Static-99. He agreed that no offender in these samples was an exact match for Mr. Suggs. He said he did not know how many offenders in the New Zealand sample were rapists as opposed to child molesters. He said that more than 60% of the Static-99 sample were pedophiles, rather than rapists. He said that the abundance of pedophiles in the Static-99 sample would tend to have the effect of overestimating rather than underestimating the risk of re-offense for Mr. Suggs because pedophiles during most of the period covered by the data had a higher risk to re-offend than other sex offenders.
Dr. Plaud testified that he did not know how many offenders in the New Zealand sample were three-time rapists. He said that he would expect that in a sample the size of the New Zealand sample there would be several hundred three time rapists. He based this assertion on research in which sex offenders were asked anonymously how many times they had committed sex crimes. Research conducted by Becker and Angel found that the "modal", or most frequent number of sex offenses committed by a sex offender was greater than one hundred. He then said that in a given sample of sex offenders, most would have at least three victims. Based on this he said that the most common number of victims per sex offender, whether a pedophile or a rapist, would be over one hundred. He said that although there was a question about how many victims Mr. Suggs had, Dr. Plaud had no reason to believe he had more victims than what the record indicated.
With respect to the additional sample from the Static-99, Dr. Plaud did not know how many offenders in the sample were three time rapists. He did not know how many offenders in that sample shared other characteristics with Mr. Suggs. He said he did not know how many offenders in that sample had offended before the age of 20 or after the age of 45. He then said that he did not know whether 60% of the offender sample in the Static 99 were pedophiles. He said that he understood that Mr. Suggs had sexually offended at age 47 and had considered that fact. He knew of Mrs. Suggs's prior criminal history but did know she had an issue with drugs. He was aware that when Mr. Suggs committed his last rape in 1996, he was living with his wife and had a young daughter at home but did not discuss this with Mrs. Suggs.
Dr. Plaud said that he did not know how many offenders in the MATS-1 sample had post-release supervision. Mr. Suggs was in a high risk category under the MATS-1 without adjusting for his age. Dr. Plaud agreed that he did not know, with respect to the MATS-1 sample, how many rapists were in the sample, how many multiple rapists were in the sample, how many individuals offended before the age of 17, how many offended at ages 17, 30 and 47, how many were in the community for approximately one month before they offended again and how many were in the community for approximately four years before they offended again.
Dr. Plaud agreed that no one in the sample precisely matched Mr. Suggs but argued that this was true with any kind of research. He defended the generalizations he had made from the data as appropriate. He said that he did not think a sample with additional characteristics which were identical to Mr. Suggs would necessarily be more accurate but it could be. He said that he could not draw that conclusion because there were no studies which indicated that an offender sample with more characteristics identical to Mr. Suggs would be more accurate in predicting his risk to re-offend.
Dr. Plaud listed factors which a meta analysis by Hanson had reviewed as to whether such factors impacted on sex offender recidivism but in his testimony did not indicate whether or to what extent any of these listed factors were correlated with sex offender recidivism. He said that even people who had committed offenses early in life had their risk level go down significantly when they were older. He said that data which indicated that persons aged 60 or over had a low risk to re-offend did not distinguish between persons who had previously committed sex crimes before 40 or after 40. He said that the MATS-1 had been validated and peer reviewed. To be peer reviewed meant that a study would have to be reviewed by two or three other individuals in the field and accepted for publication. He said that most manuscripts were rejected but that the paper which outlined the MATS-1 had been published in a journal. He said that the Static 99 was the most widely used actuarial instrument. He reported that he had begun to use the Static 99-R (a revised version of the Static 99) but then had discontinued its use because he determined the MATS-1 was a better instrument.
Dr. Plaud was questioned about statements concerning actuarial risk assessment instruments in a prior case during his testimony in the instant matter. Regarding the following statement and statements in the same proceeding, he said that he did not recall the statements particularly but said they were consistent with what he would have said:
Any tests in psychology, the most fundamental issue to consider is this, the ability
of a test to say anything about a person is a function of how that person matches the assumptions that went into the development of the test . . . if you are making statistical calculations about child molesters, and then you're making conclusions about rapists, there may be a fundamental flaw there that, basically was not considered until very recently."
May 4, 2011 Hearing Transcript (May 4, 2011 Tr.), p. 52, ll. 2-24.
He said that his testimony at the instant hearing was "completely consistent" with the State's recitation of his prior testimony. He argued that the MATS-1 controlled for age, while the Static 99 did not control for age and that this was the fundamental point he was trying to convey.
Dr. Plaud said that in evaluating Mr. Suggs he had considered a number of dynamic risk factors. These were his age, lack of current evidence of sexual deviance, no diagnosable mental condition and his medical problems. Dr. Plaud opined that while there were "sexual sadists" who compromised a small part of the population of forcible rapists, most such forcible rapists used sex as a tool of violence related to anger in which Anti-Social Personality Disorder may be involved in some cases. He said that he was not aware of any evidence of Mr. Suggs's reported erectile dysfunction, other than Mr. Suggs's self report. Although Dr. Plaud had testified that age was the single most important dynamic risk factor, he acknowledged that a report by an offender that he intended to commit a rape when released would be a more significant dynamic risk factor. He also agreed that an attempt to pull a female corrections officer into a closet and rape her could be a potent dynamic risk factor.
He said that the offending activity of rapists began to tail off in the 40's and that there were more significant drops in offending behavior after age 50. He said the change in rate was most significant in the 50's so that by age 60 the rate overall was very low. Dr. Plaud said that he had reviewed Mr. Suggs's medical and prescription records. He said that his overall conclusions about Mr. Suggs were not based on whether he did or did not have erectile dysfunction.
Testimony of John Suggs
Mr. Suggs testified on his own behalf. He said that he was 59 years old and would be 60 on June 27, 2011. He said that he had a wife, a daughter who was 15 years old, that his wife also had children and that he had grandchildren. His wife and daughter have been living in Utica since February of last year [near CNYPC where Mr. Suggs had been confined]. His wife suffers from extensive medical problems including diabetes, high blood pressure and multiple surgeries which have required that she be confined in a wheelchair most of the time. The couple were married civilly in 1995 and then married religiously in a mosque in 1996. He said that while he was in custody between 1996 and 2009 his wife visited him at least twice a month. His daughter also came to every visit. These visits included multiple prisons including one which was a ten hour ride away from New York City (where his family had been living during the time he was most recently incarcerated in a state correctional facility).
Mr. Suggs denied that his wife had brought drugs to him during any of her visits. He said that the one ticket he had received for possession of marijuana had arisen when a fellow inmate provided marijuana to him. He said that a prison superintendent had written a letter to his wife telling her that contact visits between Mr. and Mrs. Suggs would be discontinued because the superintendent believed that Mrs. Suggs had brought marijuana into the facility. When Mrs. Suggs asked for a hearing on the matter, however (according to Mr. Suggs) prison authorities said the elimination of contact visits had been a mistake and they were restored. He said that his wife was upset about this incident.
Mr. Suggs was asked about the allegation that he had told one of the psychiatric examiners, Dr. Petersen, that his wife permitted him to have sexual relations outside his marriage. He said that his wife had told him in 1993 that he could not have a second wife, as permitted by Islam, and had then given him condoms so that if he had sexual relations outside his marriage he could "at least be clean about it." With respect to the allegation that Mr. Suggs had told Dr. Petersen that he forced his wife to have sex with him when she did not want to, Mr. Suggs said that he had told Dr. Petersen that under Islamic law, his wife could not "deny me her bed if I asked for sex" but that if she did say she did not want to have sex with him he would not force her to do so. He said that he had never forced his wife to have sex but had engaged in sexual relations outside his marriage.
June 2, 2011 Hearing Transcript, p. 24, l.11.
Id., p. 24, ll. 21-22.
Mr. Suggs said that he was diabetic, had high blood pressure, had previously suffered a heart attack, had a large prostate, had two knee replacements and "[f]oot construction". He said that he walked with a cane and took 15-16 medications per day. He said that he did not feel sexual arousal. He said that he could not achieve an erection and that the last time he had gotten an erection was in 2005. He saw a Dr. Makhuli for his prostate condition and Dr. Makhuli explained to him that his erectile dysfunction was the result of his diabetes. He said that Dr. Makhuli did not suggest nor did he ask for any tests or treatment for his erectile dysfunction. According to Mr. Suggs: "We [he and Dr. Makhuli] never discussed anything else on it" [Mr. Suggs's erectile dysfunction].
Id., p. 27, l. 22.
Mr. Suggs said that the last disciplinary infraction he had received had been in 2003 for smoking marijuana and that this was the last time he smoked marijuana. He said that he had gotten a certificate in carpentry and twelve titles in upholstery while incarcerated, that he wrote, played and composed music and had taken the "RSAT" program which he described as a combined drug treatment and alternative to violence program. He said he had no memory of the year 1968 but had been told he received a high school degree during that year and also said that he had taken college courses in prison.
Regarding the ticket he received in 1989 for assaulting a female corrections officer, Mr. Suggs said that he and the corrections officer had been engaged in a consensual sexual relationship at the time and were in a closet together kissing. He and the officer had a prior agreement that he would take the responsibility if the two were caught. When he was caught in the closet, he was placed in a Special Housing United (SHU) disciplinary cell for six months but was never charged with a crime. He said that he had not received any disciplinary tickets for masturbating in prison.
Mr. Suggs testified that if he were placed on SIST, he would live with his family in Utica. He said that he would be willing to comply with any conditions which were required of him if he were placed on SIST. He agreed that he had never participated in a sex offender treatment program in prison. He said that this was due in large part to his frequent facility transfers and the fact that some of these facilities did not offer sex offender treatment. At one facility, he said, he was told that in order to participate in sex offender treatment, he would have to allow corrections staff to look through his extensive collection of pictures. He said that he did not consent to that because when staff went through a picture album they ripped pictures out of the album and pictures could be lost. He said that many of his pictures were of his daughter and they were sentimental to Mr. Suggs. He therefore was not able to participate in this program.
Mr. Suggs said he was not a serial rapist. He denied that he had committed any rapes in 1968 or 1978. Mr. Suggs agreed that he had spoken to Dr. Petersen for about three hours but that Dr. Petersen did not accurately convey what Mr. Suggs had told her because she had exaggerated his statements. He said that statements attributed to him by Dr. Peterson regarding his wife not being permitted to deny him her bed for religious reasons were inaccurate.
Mr. Suggs claimed that he "blacked out" during the period he was accused of having committed several rapes or attempted sexual assaults in 1968 and did not know whether he had committed those offenses. He said that he did not commit the 1978 rapes. [He did not indicate that he was "blacked out" with respect to the time these rapes allegedly occurred]. He did not receive sex offender treatment while incarcerated from 1968 to 1978. He also did not receive sex offender treatment while incarcerated between 1978 and 1992. Mr. Suggs said that he did not think correctional facilities offered sex offender treatment programs during these periods of incarceration. He said that he was not aware that one of the correctional facilities he was incarcerated in during the latter period had a sex offender treatment program. He said that he had never completed sex offender treatment. He testified that he enrolled in sex offender treatment at one point during his incarceration because it was a prerequisite to having a family visit in a trailer at the facility but that he was removed from the program for failing a drug test. Mr. Suggs was in a sex offender treatment program at CNYPC prior to being transferred to a New York City Department of Correction facility over the past months for court proceedings but had only been in Phase 1 of that program. This is an introductory phase during which offenders do not talk about their offenses.
In Dr. Petersen's report, she said that Mr. Suggs had told her that he did not need sex offender treatment. Mr. Suggs denied that he had said this. He said that he understood that a basic premise of all sex offender treatment programs was that an offender would have to acknowledge his crimes. He admitted that he committed a forcible rape in 1996. Mr. Suggs said that he did not suffer from a Mental Abnormality. Mr. Suggs admitted that he had started a fire in his prison cell in 1987 and received a disciplinary ticket and was also convicted of Criminal Mischief for that conduct.
Mr. Suggs acknowledged that he had previously told Dr. Petersen that it made him angry when people tried to dictate to him what he should do. He said that he had a little understanding of what SIST was and had previously been supervised on parole. He said that he understood that if he violated a SIST condition he could be imprisoned. He said that placement in a secure OMH treatment facility to him was equivalent to prison because his liberty was restricted in the same way in both kinds of facilities. He said that if he agreed to abide by SIST conditions, he would abide by those conditions. He said that in addition to his wife and daughter, his grandson, granddaughter and son-in-law were in Utica caring for his wife. He said that he did not anticipate working when he was released from prison because of his health but believed he would be on SSI and compose and play music.
With respect to whether he believed he suffered from Anti-Social Personality Disorder, Mr. Suggs said that this was a condition "everyone in this room has in some form or fashion. It is being rebellious." It involved not obeying authority, going against the establishment and not feeling guilty about it. He gave as an example the fact that people in New York City commonly jaywalked. He said that he suffered from Anti-Social Personality Disorder to a certain extent but did not have the full characteristics of the condition. With respect to sexual re-offense triggers, he said that they were things which caused a person to act out or react and could involve what another person might say or how they look. Mr. Suggs said that he did not have any sexual re-offense triggers. Mr. Suggs described remorse as feeling sorry for something a person had done.
Id., p. 84, ll. 10-11.
Mr. Suggs testified that with respect to the 1996 rape, he had met a woman from Spain, spent the day with her and then went with her to Central Park at night and began to engage in consensual sexual intercourse. During the intercourse, the woman said she wanted to stop, Mr. Suggs did not stop and in that way, he testified, he committed rape. Mr. Suggs had told Dr. Petersen that an individual came upon Mr. Suggs and the woman in the park and at this point the woman told Mr. Suggs that she wanted to terminate the intercourse. With respect to the incident with the female corrections officer, Mr. Suggs said that he did not take responsibility for the incident, as he said he had agreed to do with the officer, only when he was charged with a crime for the incident (which did not result in a conviction for a new criminal charge but did result in a misbehavior finding at the correctional facility). He said that inmates and corrections officers were not supposed to have sexual relationships but that he thought such relationships were not inappropriate, given the realities of prison life.
Mr. Suggs agreed that he had previously said that the happiest day of his life was the day his daughter was born and that he committed the 1996 rape approximately 7 months after that event. Mr. Suggs said that when a woman said she did not want to engage in sexual activity, that meant a man had to stop engaging in that activity. He said that he had learned that principle after his conviction for the 1996 rape. With respect to the marijuana ticket Mr. Suggs received in 2001, he said that he received five months of SHU time and did not cooperate with corrections authorities when they sought to determine how the marijuana had been smuggled into the prison. With respect to his being "blacked out" in 1968, he said that he had previously told Dr. Petersen that he "went to a party and got high in this party and passed out. When I came to, it was 96. I mean 69. 1969."
June 8, 2011 Hearing Transcript, p. 113, ll. 18-20.
Mr. Suggs said that he did not know any of the five women who accused him of rape or attempted rape in 1968. After his conviction in 1968, he initiated court proceedings to overturn his conviction which were eventually successful and led to his release in 1978. In Phase 1 of the treatment program at CNYPC, Mr. Suggs reported, he learned about triggers, sexual deviancy and the emotional, rational and wise mind. He said that sexual deviancy involved persons who were flashing or getting excitement about doing sexual things. Mr. Suggs said that he did not have any sexual deviancy. He said that no one at the sex offender treatment program had said anything to him about his claim that he had no sexual re-offense triggers because when he pled guilty to rape in 1996, he knew that he had done wrong. He said that the sex offender treatment program had been beneficial to him because it had taught him how to better communicate and understand people, be a better father and deal with family. He also said, however, that the CNYPC sex offender treatment program itself was "garbage".
Id., p. 120, l. 11.
Mr. Suggs said that he had attended programs at CNYPC which included a drug program, meditation, programs about how to deal with children, family and anger, sex education and arts and crafts. He said that when he becomes angry, he gets quiet and then writes his grievances down. He has filed petitions at CNYPC. He said that he saw the CNYPC program as garbage because you cannot teach someone something if you punish them and he has been punished by being confined for 2 ½ years past his maximum prison sentence expiration date. He said that CNYPC was run in a worse way than a prison. He said that he had filed petitions concerning conditions and harassment. He said that at CNYPC he was treated worse than a prisoner. He said that in order to obtain basic privileges equivalent to what could be obtained at Rikers, an offender confined at CNYPC had to admit to suffering from a Mental Abnormality. He said that he had not advanced to Phase II of the sex offender treatment program because he would not admit to suffering from a Mental Abnormality. He said that he had been found to have a dirty urine on two occasions during his last term of incarceration.
CONCLUSIONS OF LAW
The standard which courts must use in determining whether to subject a sex offender found to have a Mental Abnormality to confinement or Strict and Intensive Supervision and Treatment (SIST) is provided by subdivision (f) of section 10. 07 of Article 10. That standard is as follows:
If the court finds by clear and convincing evidence that the respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement. In such case, the respondent shall be committed to a secure treatment facility for care, treatment, and control until such time as he or she no longer requires confinement. If the court does not find that the respondent is a dangerous sex offender requiring confinement, then the court shall make a finding of disposition that the respondent is a sex offender requiring strict and intensive supervision, and the respondent shall be subject to a regimen of strict and intensive supervision and treatment in accordance with section 10.11 of this article. In making a finding of disposition, the court shall consider the conditions that would be imposed upon the respondent if subject to a regimen of
strict and intensive supervision, and all available information about the prospects for the respondent's possible re-entry into the community" MHL § 10.07 (f).
The dispositional determination in Article 10 cases requires courts to make a prediction about whether an offender is likely, if placed on SIST, to commit a sex crime. Predicting human behavior on an issue as complex as potential future sexual offending is, in this Court's view, an enterprise of extraordinary difficulty in the vast majority of cases, including this one. The consequences of an incorrect decision (to the extent the correctness of a decision can even become known) are grave. On the one hand, to release an offender like John Suggs into the community and have him commit a further act of sexual violence would be to obviate the compelling goal which the Legislature had when they enacted Article 10: protecting the public from offenses which are among the most heinous known to our society. On the other hand, subjecting a man like John Suggs to continued indefinite confinement when such confinement is unnecessary would be to effectively punish an offender who has already been sanctioned for his crimes. Such a result would be offensive to our most precious notions of fairness and due process which are fully due, obviously, even to offenders who have committed crimes as horrible as those at issue here.
The burden in this proceeding, of course, is on the State, and given the inherent difficultly of predicting future human behavior, an argument could certainly be made that under the four corners of the statute courts should rarely order that an offender be confined, since predicting that a given individual will commit a sex crime is so difficult. The Legislature, however, clearly intended for reasoned judgments to be made on this issue and for courts to not simply rely on the inherent difficulty of predicting behavior to opt for supervision rather than confinement in all but the most obvious cases. As the Second Circuit noted in their 1978 decision, in exploring the difficulty of dealing with offenders like John Suggs, "decisions have to be made." Moreover, those decisions cannot be made by reading an actuarial risk table or taking at face value the informed opinion of an expert. The Legislature has charged trial judges with making these important determinations..
There are certainly good arguments to be made for why the State has not met its burden in this case. Those arguments were outlined by Dr. Plaud. At age 60, on an actuarial basis, comparing Mr. Suggs's future likelihood of re-offending with the actual re-offense rates of a large range of sex offenders of a similar age, Mr. Suggs is highly unlikely to re-offend. His physical ailments are certainly both a part of the reason for that reduced actuarial risk and also significant in their particulars, even apart from his age. Although Mr. Suggs did not have an exemplary disciplinary record when he was first incarcerated, the last disciplinary infraction he committed in prison was in 2003. This is certainly strong evidence that Mr. Suggs has become able to conform his behavior to the restrictive conditions imposed on him in prison. He has also not demonstrated any recent sexually deviant behaviors while incarcerated.
Mr. Suggs has no generally accepted diagnosis of a sexual disorder (like pedophilia, for example). During his testimony, he appeared to the Court to be intelligent and articulate and behaved in a completely appropriate manner. The answers he gave to a number of the questions he was asked, as discussed in more detail infra, were disturbing. If a person were to meet and converse with John Suggs for an hour, however, in the Court's view, without knowing his criminal history, that person might well come away with a very positive view of him. What makes this particularly striking is the Respondent's history. Here is a man who suffered what was apparently an horrific childhood, was apparently diagnosed as a young adult with significant psychiatric problems, went on to commit a series of horrendous crimes and has spent the vast majority of his adult life in prison. Yet on the surface he seems to be a pleasant and thoughtful person. Of course, there is an argument that this might make him all the more dangerous if he were to be released. One might well imagine a Spanish exchange student in 1996 meeting John Suggs and initially enjoying the experience. There may well have been no indication from the perspective of that victim that the initially pleasant companion she met earlier in the day would forcibly rape her before the night was through. But Mr. Suggs certainly does not manifest any outward signs of being belligerent or out-of-control. He has the support of his wife and daughter who have said that he will be able to live with them if he is released. The Court agrees that this would be a protective factor mitigating his risk to re-offend.
The factors which argue that Mr. Suggs is a Dangerous Sex Offender in Need of Confinement, however, in the Court's view, are more compelling. First, as discussed in more detail immediately infra, this Court does not believe that the actuarial data presented by Dr. Plaud indicates that Mr. Suggs will not commit another sex crime if not confined. This Court has great respect for actuarial data. Without such information, courts and psychiatric professionals must rely upon subjective judgments which are always prone to a significant risk of error. That risk is certainly present in this case.
The relevance of any actuarial data, of course, are dependent on the degree to which the characteristics of the members of a sample reflect the relevant characteristics possessed by a respondent. A study which found, for example, that of 1000 randomly selected persons, less than 1% would be likely to be convicted of a sex crime in their lifetime would be of little use in determining how likely a thrice convicted pedophile might be to molest another child. On the other hand, by definition, no actuarial data will ever precisely match the characteristics of a given offender. Every human being is obviously different. So an argument can always be made, in reviewing any actuarial data, that a sample does not reflect characteristics which are sufficiently similar to those of a respondent to be predictive. It is also useful to remember what actuarial data can and cannot do. Actuarial data cannot definitively predict how any individual will behave in the future. As one Court explained:
Actuarial instruments do not measure psychological constructs such as personality or intelligence. In fact, they do not measure any personal attributes of the particular sex offender at all. Rather, they are simply actuarial tables — methods of organizing and interpreting historical data. State v. Rosado, 25 Misc 3d 380, 391 (Bronx County Supreme Court, June, 29, 2009 (Riviezzo, J.) quoting In re Commitment of R.S., 339 NJ Super 507, 540, (App. Div. 2001), affd, 173 NJ 134 (2002).
The first problem which this Court sees with the age-based actuarial data cited by Dr. Plaud is that it does not account for the fact that Mr. Suggs committed his last rape at the age of 45. Dr. Plaud testified that the re-offense rate for sex offenders generally declined with age, a proposition which this Court certainly agrees with. He said that this decline began during a person's 40's and that the manifestations of Anti-Social Personality Disorder, which Dr. Kirshner testified Mr. Suggs had, began in a person's 30's. Mr. Suggs then, committed his last rape at a time when his overall risk for committing a rape had already declined because of his age. An actuarial study which followed men who had committed rapes in their 40's and then looked to see how many of them committed an additional rape at the age of 60, in the Court's view, might be highly relevant to the question here. But no such data apparently exists. A related problem, as Dr. Kirshner noted, is that the most dangerous sex offenders are often incarcerated for long periods of time so that many of these offenders may not be in the community at age 60 where they are capable of re-offending. The data on older offenders is thus potentially misleading because the most dangerous offenders will often not be included in samples. Given the fact that the entire premise of Dr. Plaud's argument is that Mr. Suggs is unlikely to commit another sex crime because of his age, the absence of any explicit consideration in the data of the fact that he has already belied that statistical expectation is obviously problematic.
A second significant fact which is not taken into account by the data is the number of crimes Mr. Suggs has committed. In the Court's view, the evidence at the trial indicated that Mr. Suggs has committed 6 forcible rapes and 2 attempted rapes during his lifetime (not including the incident in which he was found to have dragged a female corrections officer into a closet). There is no indication in the data Dr. Plaud provided that the sample he relied upon reflected these numbers in any way. Nor do these data concern offenders who have committed forcible rapes during three distinct periods of their lives: at age 17, at age 27 and at age 45.
Dr. Plaud argued that studies he had read which found that the "modal" number of crimes committed by sex offenders was over 100, suggested to him that most offenders in his sample would have committed at least three sex crimes. He described the "modal" number as the most common number of crimes which an offender admitted to committing and said the data he was reciting had come from anonymous surveys taken by sex offenders. He did not relay, however, what the source of this data was, how many offenders fit the "modal" number of offenses in these surveys as opposed to any other number or to what extent this modal number reflected crimes committed by, for example, pedophiles as opposed to rapists. His claim that the most common number of sex crimes committed by a sex offender was over 100, moreover, begs the question of how many sex offenses John Suggs has committed during his life. In the Court's view, there is no evidence that John Suggs has committed any sexual offenses other than the ones which were documented during his trial. But just as this Court cannot speculate about how many additional crimes John Suggs may have committed, it cannot speculate that the sample Dr. Plaud relied upon included individuals who may have committed as many rapes or attempted rapes as John Suggs.
The data which Dr. Plaud relied upon included not only rapists but pedophiles, although Dr. Plaud said that since pedophiles had a higher recidivism rate than rapists, this would skew the data in a manner unfavorable to Mr. Suggs. On the other hand, in a previous proceeding (as outlined supra) Dr. Plaud apparently testified that using data about child molesters to draw conclusions about rapists might represent a "fundamental flaw" in a risk assessment analysis. Dr. Plaud also acknowledged that he did not know how many offenders in his sample had offended before the age of 20, as John Suggs had. The Rosado court framed these issues in a citation to an article about the potential pitfalls of actuarial instruments in general, in exploring the question of whether the Static 99 could be used in an Article 10 trial proceeding:
The current research of actuarial measures is highly reductionist, in collapsing most sex offenders into a single category. This profound disregard for the heterogeneity of sexual offenders may lead to serious errors in prediction. Even the most basic typologies (e.g. rapists and child molesters) are neglected. For example, child molesters are often motivated by sexual aspects of offending . . . in contrast, rapists are often motivated by anger and commit nonsexual offenses. Lumping together all paraphilias and sex offenses confounds any attempt at meaningful interpretation. Unquestionably, more focused methods are needed that take into account both clinical conditions (e.g. paraphilias) and offense types." Rosado, supra, 25 Misc 3d at 393-394, quoting Rogers and Jackson, Sexually Violent Predators: The Risky Enterprise of Risk Assessment, J. Am. Acad. Psychiatry Law 33:523-8, 2005 at 526-527. (The above cited passage did not specifically analyze the MATS-1 and indeed was apparently written before the MATS-1 was even developed).
This Court also is skeptical that the MATS-1 can be relied upon in reaching an opinion in this case. The Court understands the MATS-1 to be a statistical tool which was the subject of a scholarly peer-reviewed article published by Richard Wollert in 2010. But, as Dr. Kirshner testified without contradiction, it is not a commonly used and accepted instrument in the field for predicting sex offender risk. It is tool which is now the subject of ongoing research. It was derived by taking and respecifying data from the Static 99 - the most commonly used actuarial risk assessment instrument in use in the world today. The MATS-1 may well be a tool which will end up becoming the gold standard for actuarial risk assessment instruments and become widely used in assessing risk in the future. But as far as the Court was able to determine, at this point, it is simply a tool which Dr. Plaud and Dr. Wollert believe is a useful instrument for assessing risk. Certainly, this Court has never encountered this tool before in the many sex offender civil management proceedings it has presided over.
One final point about Dr. Plaud's scoring of the MATS-1 is that he apparently did not score it correctly. Although Mr. Suggs was 59 when Dr. Plaud conducted his assessment, he evaluated Mr. Suggs as being in the age bin for offenders who were 60 or older. That is, rather than comparing Mr. Suggs to offenders who were in their 50's, he compared Mr. Suggs to offenders who may have been in their 60's, 70's, 80's or 90's. Mr. Suggs was obviously almost 60 at the time Dr. Plaud conducted his analysis and has just turned 60. But as the Court understands the MATS-1, it does not provide that any offender who is almost 60, should be compared to offenders who may by in their 70's or 80's. It mandates that offenders who are 60 or older should be compared with the oldest offenders. Dr. Plaud also did not explain why data concerning an offender is his 80's, for example, would predict the re-offense rate for a much younger man like John Suggs, or what the ages of the offenders in the over 60 "bin" were.
One of the State's counsels, Mr. Muia, rhetorically captured what this Court believes is the limited relevance of the actuarial data as it applies to the Respondent when he argued that Mr. Suggs is "off the charts". John Suggs is unique in a number of ways, in the Court's view, which make the actuarial data presented by Dr. Plaud of limited relevance. There is no question, in the Court's view, that Mr. Suggs's age reduces his risk to re-offend. But that data do not come anywhere near close to demonstrating, in the Court's view, that Mr. Suggs is now at a low risk to commit another sex crime.
The Respondent's good conduct in prison is commendable and certainly relevant in assessing his re-offense risk. But the crime of choice for Mr. Suggs throughout his criminal history has been raping adult women. He has obviously had very limited opportunity to commit such crimes in a correctional facility. The fact that Mr. Suggs would reside with his wife and daughter if released is also, in the Court's view, a protective factor. But he resided with his wife and daughter when he committed his last rape. His daughter was 7 months old at the time. His wife has provided him with condoms in the past in order to facilitate his engaging in sexual relations with other women without risking disease. There is no reason to believe that Mr. Suggs's family ties, as positive as they may be for his life in general, will be any more protective now then they were 15 years ago.
Dr. Plaud opined that Mr. Suggs did not have a diagnosable sexual disorder. Even assuming that is true, however, Article 10 does not require a condition, disease or disorder which a Respondent suffers from to line up with a diagnosable sexual disorder as defined by the Diagnostic and Statistical Manual. When the Legislature created Article 10, it certainly did not intend to exclude a violent serial rapist like John Suggs from the statute's coverage because he could not be diagnosed with a psychiatric condition directly related to sexual offending. Dr. Plaud does not believe that Mr. Suggs should be confined, but he also does not believe he suffers from a Mental Abnormality. While that is certainly, in the Court's view, a reasonable position to argue in this case, a jury has already decided that issue.
Mr. Suggs's physical ailments are certainly relevant in this case. A couple of points, however, should be made about them. First, even assuming that all of the issues regarding his medical condition which Mr. Suggs testified about are completely true, rape, as the court understands the motivations behind the crimes John Suggs has committed, is a crime of violence in which sex is used as a weapon, rather than primarily a crime motivated by sexual desire. John Suggs has raped his victims. But he has also fondled them, attempted to rape them, beaten and kicked them, strangled them, abducted or threatened them with knifes, broken bottles and guns, dragged them and sodomized them. There are a multitude of violent sexual acts which Mr. Suggs clearly remains fully capable of committing, even if he suffers from erectile dysfunction and an absence of sexual desire. On this point, both Dr. Kirshner and Dr. Plaud agreed that erectile dysfunction or the lack of such a dysfunction did not impact their opinion of how dangerous Mr. Suggs may be.
In this regard the Court would note another observation about Mr. Suggs's demeanor. In Court Mr. Suggs has walked with the aid of a cane. There is no dispute that he suffers from a number of medical conditions. But beyond a slight limp, he does not by his outward appearance manifest, at least to this Court, any outward signs of being unhealthy. He is of average height, is only moderately overweight and appears to have a healthy physique. Mr. Suggs would appear to be perfectly capable of overpowering any number of female victims if he chose to.
The Court also does not credit Mr. Suggs's assertions about his erectile dysfunction. Part of this is because the Court found Mr. Suggs's testimony incredible in other respects (discussed infra). But that conclusion is also due to two other facts. First, there was no evidence presented at the hearing that Mr. Suggs suffered from erectile dysfunction, other than his own self-report.
Second, his account of the way in which he learned of this condition and his lack of any attempts to further diagnose or treat it did not seem credible. John Suggs is a man whose entire life has been driven by sexual violence. Yet, according to him, when he was told by Dr. Makuli that his reported erectile dysfunction had likely been caused by his diabetes, that ended the matter. There was apparently no follow-up, to make a more definitive diagnosis. No treatment was offered and none was requested. No additional discussions were had. Mr. Suggs claimed during his testimony that the last time he had an erection was six years ago. His testimony created the impression that he has simply accepted that sexual function and sexual desire are no longer any part of his life. The Court finds that highly unlikely.
Nor does the Court credit Mr. Suggs's assertion that he no longer has a sex drive. Dr. Kirshner pointed out that Mr. Suggs had reportedly complained to Dr. Petersen during his interview with her in 2009 that his wife was not able to satisfy him because of the physical problems she had. Obviously, as Dr. Kirshner testified, this would imply that Mr. Suggs, at least as late as 2009, continued to have a sex drive.
As Dr. Kirshner testified, the number of Mr. Suggs's prior arrests and his prior criminal history and history of parole violations increase his actuarial likelihood to re-offend. Additional factors which made him more likely to re-offend, according to Dr. Kirshner, are the violence involved in his prior crimes, the fact that a number of these crimes occurred in close temporal proximity to each other and the fact that the first series of rapes he committed or attempted were at a very young age (17). A number of significant things have changed about John Suggs since he committed his first five rapes and attempted rapes in 1968. What has not changed, as Dr. Kirshner testified, is anything about his basic psychological makeup as it relates to his history of sexual violence. In that respect, John Suggs is the same man today as he was 40 years ago.
What is particularly striking in this regard is Mr. Suggs's continued denial of his crimes. During 1968 he "blacked out". He simply denies committing a violent rape which he was found guilty of committing by a jury in 1978 as well as an additional rape he was charged with but not convicted of in that year. Even with respect to the one rape he has admitted to committing, he continues to significantly minimize his conduct. Rather than acknowledging that he raped the victim, he asserts that he and the victim had consensual sexual intercourse. The only thing he did wrong on that occasion, according to Mr. Suggs, was to not stop when the victim, in the midst of intercourse, asked him to stop. The Court finds none of the foregoing assertions credible.
The Court fully understands that denial of one's sexual offenses and the failure to accept responsibility for them are not predictive on an actuarial basis of increased re-offense risk. The Court also understands, however, that sex offender treatment can be effective for some offenders in mitigating risk. Mr. Suggs, over 40 years, has never advanced to any degree in a sex offender treatment program. Such programs typically require an offender to acknowledge committing sexual offenses in order to progress in treatment. That is certainly the model used by the State. The reason, in the Court's view, is obvious. It is difficult to change a behavior which a person does not even acknowledge has occurred. Sex offender treatment might have the potential, in the Court's view, to reduce Mr. Suggs's risk to re-offend. But the Court does not understand what kind of treatment could be effective for a man who continues to deny virtually all of his crimes.
Mr. Suggs denies that he is sexually deviant. He says that he does not have any
"triggers", that is, things in the outside world which might precipitate his commission of another sex crime. He describes the sex offender treatment program offered at CNYPC as "garbage". He asserts that the anti-social characteristics he may have are possessed by everyone. In his mind, apparently, his anti-social behaviors can be analogized to the conduct any average person might exhibit when crossing the street in defiance of a red light. He is a man who is utterly devoid (or at least professes to be utterly devoid) of any understanding about what has precipitated the crimes he has committed or any need to guard against committing those crimes in the future. Given the carnage he has wrought, that is chilling.
Mr. Suggs has committed his crimes while under parole supervision. He has committed them within a brief time of being released from prison. He has committed them while living with his wife and infant daughter. He has committed them at multiple times during his life which have been separated by decades. It might be argued that in a sense, Mr. Suggs's patterns of criminal behavior have moderated over time. In 1978, it took only 28 days for him to commit another rape and when he did so it involved strangling his victim into unconsciousness. In 1996, he was apparently out in the community for four years before he raped again and used less physical violence in raping his victim. But he did rape again. The legal standard at issue here obviously requires this Court to find that Mr. Suggs is likely to commit another sex offense if not confined. It does not, however, place any explicit time limit on when he might be likely to commit such an offense.
The Court does not believe that if Mr. Suggs were released from custody he would immediately proceed to sexually assault a victim. But the Court does believe Mr. Suggs would commit a sex crime at some point again if he were released onto SIST. SIST is an extremely restrictive regimen designed to protect public safety. But Mr. Suggs has previously committed multiple sexual assaults against stranger victims, people he has encountered simply walking in a park, on the street or in a school. There is nothing about the SIST regimen which would prevent him from committing such opportunistic crimes again. A GPS device or a curfew would not prevent John Suggs from sexually assaulting women in broad daylight in public places as he has done in the past. Mr. Suggs has had no compunction in the past about committing sex crimes while on parole. There is no reason, in the Court's view, to believe that a more stringent parole regimen would stop him from offending again..
For all of these reasons, the Court finds that the Respondent is a Dangerous Sex Offender in Need of Confinement. Mr. Suggs shall be transferred to a Secure Treatment Facility operated by the Office of Mental Health as soon as practicable where he shall remain until such time as he no longer requires confinement pursuant to the provisions of Article 10.
June 30, 2011
Daniel Conviser
A.J.S.C.