Post-Conviction Polygraph in the Community and Court: Raising the Bar on PCSOT Examiners

By Kenneth Blackstone

An estimated quarter million sex offenders are currently under community supervision. The population continues to grow, and some sex offenders re-offend—making community safety a great concern of our society. Methods of sex offender management and treatment continue to improve, and sex offenders often re-integrate into society successfully; therefore, impartiality and integrity among sex offender management professionals is immensely important. These individual—and often conflicting—factors bring us to conclude that sex offender management is a significant component of correctional supervision in the United States.

In a majority of states, a key element of sex offender management is a unique form of polygraph referred to as post-conviction sex offender testing (PCSOT). When jurisdictions use this tool, the standards of the American Polygraph Association (APA) are automatically incorporated into mandates and policies. This author is concerned with the fact that APA standards do not demand the best possible post-conviction examinations, and due to the imminent and irreparable consequence of this error, we urge the APA and other organizations such as the American College of Forensic Examiners Institute (ACFEI) to raise the bar on PCSOT examiners.

The Offender Population
In 2005, the Bureau of Justice Statistics reported that 148,800 inmates were serving time in state prisons for rape and “other” types of sexual assault. Sex crimes, then, accounted for about 12% of incarcerated state offenders. Inmates in Federal and military prisons were not reported by crime type (Bureau of Justice Statistics [BJS], 2005). Although a constellation of recent legislative changes and sentencing practices has increased the likelihood and length of incarceration for convicted sex offenders, “approximately 98% of all incarcerated sex offenders will some day return to the community for supervision” (English, Jones, & Patrick, 2002).

At year-end 2005, more than 4.9 million adult men and women were under federal, state, or local probation or parole jurisdiction. A 2005 survey estimated that 3% of these probationers were sex offenders, and parolees were not identified by crime type (BJS, 2005). By using the incarcerated sex offender rate of 12%, we can estimate that 92,622 parolees had been convicted of sexual offenses, giving us a ballpark figure of 217,000 sex offenders in the community at the end of 2005.
Sex Offender Recidivism
“What happened to 9-year-old Jessica Lunsford is every parent’s worst nightmare. In February 2005 she was abducted from her home in Florida, raped, and buried alive by a stranger, a next-door neighbor who had been twice convicted of molesting children. Over the past decade, several horrific crimes like Jessica’s murder have captured massive media attention and fueled widespread fears that children are at high risk of assault by repeat sex offenders.” (Human Rights Watch, 2007)

            “Sex offender laws are predicated on the widespread assumption that most people convicted of sex offenses will continue to commit such crimes if given the opportunity. Some politicians cite recidivism rates for sex offenders that are as high as 80–90%.” (Human Rights Watch, 2007)


Illinois State Representative John Fritchey described the atmosphere saying, “The reality is that sex offenders are a great political target, but that doesn’t mean any law under the sun is appropriate” (Keith, 2006).

Opinions based on research do not agree with fear-based assumptions and political statistics. In fact, “(e)xisting research clearly indicates that sex offenders are, compared to other offenders, among the least likely to re-offend” (Langan & Levin, 2002). It also appears that when sex offenders do re-offend, their re-offense is seldom sexual in nature. Langan, Schmitt, and Durose (2003) researched 9,691 sex offenders released from prison in 1994 and found that only 12% of the re-arrests in the 3-year post-release period involved a sex offense. 

A 2007 study conducted by the Minnesota Department of Corrections showed that after 3 years, 7% of 3,166 offenders had been re-arrested for a sex offense, 6% had been re-convicted, and 3% had been re-incarcerated. By the end of the follow-up period (an average of 8.4 years for all 3,166 offenders), 12% had been re-arrested for a sex offense, 10% had been re-convicted, and 7% had been re-incarcerated (Minnesota, 2007).

A 2007 study released by the Tennessee Bureau of Investigation monitored 506 sex offenders and 523 non-sexual offenders over a 3-year period after their release from prison and local jails and compared their recommitment rates. Recommitment was defined as re-entry into the criminal justice system due to either a new arrest or a technical violation of supervision. This study “demonstrated a marked difference between the recidivism of sex offenders and offenders with other primary offenses who were released. The sex offender group showed a success rate of 44.1%, almost double the rate of the other release group. Only 28.1% of the sex offenders released were recommitted into the prison system, while 51.6% of all other releases were recommitted.” (Tennessee, 2007)

Recidivism rates vary by jurisdiction, by study, and by definition of recidivism. Commonalities include a lower sexual than non-sexual re-offense rate and a remarkable success rate. Although these studies can be interpreted as evidence that some sex offenders re-offend, they should remind us that some sexual offenders do not re-offend, making impartiality and professionalism of utmost importance in post-conviction sex offender testing.

Post-Conviction Polygraph
In an effort to decrease recidivism and increase success, many jurisdictions use a multi-disciplinary “containment approach” toward sex offender management. “Empirical data are surfacing from many jurisdictions (using the containment approach) that reflect the value of this approach in reducing technical violations and new crimes” (K. English, personal communication, May 22, 2007). In this model, the following requirements are necessary for offenders:

To be supervised under general and special conditions of probation or parole

To participate in sex offender specific treatment

To undergo polygraph examinations during the evaluation process and periodically throughout the supervision period

“The value of the post-conviction polygraph seems undisputed among those who use it, and those jurisdictions that now use it report that they could not get along without it. The polygraph has become an important asset in treatment and supervision, providing independent information about compliance and progress.” (Center for Sex Offender Management, 2000)

            “Using the polygraph to manage offenders in the community is not new. In 1966, Illinois Judge Clarence E. Partee used polygraphy to help him decide on probation applications (cited in Partee, 1975); and in 1969, in Walla Walla, Washington, Judge (John C.) Tuttle developed a similar plan that required probationers to be periodically tested by polygraph to determine if they were complying with the conditions of supervision (cited in Abrams & Abrams, 1993)” (English, Pullen, & Jones, 1996).

            “In 1973, Judge John Beatty initiated the first polygraph surveillance program in Oregon” (Abrams & Ogard, 1986).

            With the development of the containment approach, the popularity of post-conviction polygraph has continued to spread into numerous states. Although a 1994 national survey indicated that only 11% of probation and parole offices used polygraph as a monitoring tool (English, Pullen, & Jones, 1996), today it is used to some degree in all 50 states, and at least “thirty-five (35) states are using the post-conviction polygraph regularly, as part of community supervision. Most states (today) do not mandate polygraph testing in statute, and in general, the practice varies by jurisdiction and is usually a result of agency policy and not by statute” (K. English, personal communication, May 22, 2007).
Research and Standardization
Governmental statutes and departmental polices typically incorporate the standards of the APA into their own, but “the integrity of polygraph testing has been attacked on two fronts: lack of process standardization and lack of validation research. Opponents of the polygraph argue that individual differences, such as body mannerisms of clients, amount of examiner experience in testing special populations, quality of examiner training, and various types of therapist/examiner partnerships bias the polygraph results. To some extent, however, all research is biased by these variables if not sufficiently controlled.” (Ahlmeyer, Heil, McKee, & English, 2000)

Impressive research has been conducted on the specificity of the polygraph. In 1997, Forensic Research Inc. compiled the results of 80 research projects conducted since 1980, aimed at assessing the validity and reliability of polygraph testing. The 12 field validity studies conducted involved 2,174 exams and yielded a 98% accuracy rate (average over studies). In a praiseworthy 2007 attempt to raise its standards, the APA identified seven test formats as “validated” per the following research criteria:

The research had to be published in full.

The research had to be replicated.

The published polygraph technique had to be identified by name or reported in sufficient detail so that the correct name for the technique could be determined.

When multiple techniques were reported, the accuracy figures had to be available for each technique.

The accuracy figures had to be broken out separately for truthful and deceptive cases.

The ground truth criteria must have been independent of the polygraph results.

The testing and scoring technique must have been representative of field practices.

The field cases must have been randomly selected or, with laboratory studies, subjects must have been randomly assigned to either deception or non-deception conditions.

The formulation of decisions of deception or truthfulness on individual cases could not consider the results of other examinations on the same crime.

For laboratory data, programmed countermeasure cases were excluded.

While the Army Modified General Question Technique (MGQT), the Concealed Information Test (AKA Guilty Knowledge Test), Federal Zone Comparison Test (AKA Army ZCT), Reid Technique, Relevant-Irrelevant (RI) Screening Test, Test for Espionage and Sabotage (TES), and Utah Zone Comparison Technique all meet the definition of “validated format” (Krapohl, 2006), they are not all applicable in post-conviction testing.

Under new research criteria, only one usable format, the Utah Technique, reaches an overall accuracy rate of more than 90%. Research shows that the Utah Zone is correct in 92% of deceptive cases and in 89% of truthful cases, giving it an overall accuracy rate of 91%. These rates are without inconclusives, and the Utah Zone has an inconclusive rate of 12%.

This author considers it laudable how the APA has classified a polygraph examination as either evidentiary or investigative and has established different ‘acceptable error rates’ for evidentiary and for investigative testing, but this is where the praise ends. This is because these standards identify post-conviction sex offender testing as an investigative examination, and, per the current APA standards, the acceptable rate of error for an investigative/post-conviction examination is 20%, while evidentiary exams are held to a higher standard of 10%. 

Definitions
Per APA Standards of Practice (2007), an evidentiary examination is “a polygraph examination, the written and stated purpose for which, agreed to by the parties involved, is to provide the diagnostic opinion of the examiner as evidence in a pending judicial proceeding.” Per APA Standards of Practice, an investigative examination is “a polygraph examination for which the examination is intended to supplement and assist an investigation and for which the examiner has not been informed and does not reasonably believe that the results of the examination will be tendered for admission as evidence in a court of record. Types of investigative examinations can include applicant testing, counter-intelligence screening, post-conviction sex offender testing, as well as routine multiple-issue or multiple-facet criminal testing.” 

Based on the above definitions and the following observations, this author feels that post-conviction examinations should be considered evidentiary and, as a result, be held to a higher standard. Again, this author is not concerned with terminology but with the impact of a lower standard.

Because of the Daubert decision, reasonable belief that results will be tendered for evidence applies to post-conviction as well as evidentiary examinations. “Daubert opened the door for the admissibility of polygraph data in post-conviction sex offender management, because it gives district courts the authority to determine if evidence is relevant and reliable”  (English, Jones, & Patrick, 2002).

“Following Daubert v. Merrell Dow, renewed efforts have been made to introduce polygraph test results. Although Daubert technically applies only to the federal courts, several states have chosen to adopt the Daubert standard for admission of scientific evidence. In so doing, these states have revisited their admissibility standards after Daubert and specifically elected to adhere to the Frye test, whereas others have attempted to intertwine aspects of both.” (Stern, 1997)

Some may argue that post-conviction tests are not evidentiary because they are not part of a pending judicial proceeding. But post-conviction tests are a result of an ongoing judicial proceeding that continues until the sentence has been served, in full. Then there is a possibility of civil commitment.

Civil commitment hearings will review polygraph examinations given during treatment and supervision. Currently, 20 states (Arizona, California, Florida, Iowa, Illinois, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, North Dakota, New Jersey, New York, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin) have civil commitment laws, as does the District of Columbia.

Convicted sex offender examinees are in fact ordered by the court of record to participate in post-conviction testing, and participation or lack thereof is a matter of court record. Some courts directly order polygraph testing during sentencing, some courts order offenders to follow the directions of their supervising officer, and some courts modify sentences based on post-conviction testing results.

Post-conviction polygraph reports are reviewed by “an arm of the Court” (U.S. v. Saxena, 2000). Although some may argue that post-conviction examinations are not used as evidence in Court, the “recipients of the examination results are technically court officials since the officer works on behalf of the court” (K. English, personal communication, May 22, 2007). 

Although “it is more common that the information from the polygraph examination triggers the supervising officer to increase surveillance or contacts with family members to investigate ‘red flags’ that surfaced during the examination” (K. English, personal communication, May 22, 2007), the likelihood of testimony on post-conviction testing exists, just as it does in evidentiary testing.

Some will argue that evidence in a post-conviction hearing is held to a standard of preponderance of evidence, while evidentiary tests must meet the reasonable doubt standard. Evidentiary exams are used in civil and criminal proceedings. Post-conviction polygraph exams range from revocations to sentence modifications to civil commitment, and evidence used in these proceedings must meet both thresholds.

Some will argue that post-conviction examinations are not evidentiary because they are not single-issue examinations. It is this author’s belief that any multiple-issue situation can be addressed in a single-issue test, either by using exploratory and then single-issue tests or by prioritizing and focusing on the most important issue.

Court Rulings
The use of post-conviction examinations has been appealed by several defendants and the following provide only a sample:

In U.S. v. York (2004), the 1st Circuit Court affirmed sentencing conditions that included post-conviction polygraph. Lennell York Jr. was incarcerated on a sexual offense and while in prison mailed a threatening letter. He admitted this to the FBI, pleaded guilty, and was consequently ordered to participate in sex offender treatment and to submit to periodic polygraph testing. York appealed these conditions based on several arguments, one of which was that the polygraph is an “inherently unreliable and thus unreasonable means of ensuring compliance with supervised release conditions.” Quoting from U.S. v. Scheffer, York pointed to the Supreme Court’s acknowledgment that “there is simply no consensus that polygraph evidence is reliable.” The Court responded: “The United States does not deny that polygraph technology is of doubtful reliability, but it asserts that the polygraph is nevertheless a useful tool for policing defendants’ compliance with conditions of supervised release. Regardless of the device’s actual ability to detect lies, the government suggests, the polygraph provides an incentive for York to pursue his treatment program honestly because he may believe that if he lies about his progress, the polygraph will expose him.”

In Kansas v. Lumley (1999), the defendant appealed a prison sentence that resulted from his untruthful answer to a polygraph question regarding contact with a child. The appeal was denied with the judge finding that polygraph reliability was sufficiently robust to be acceptable for a parole or probation revocation hearing that requires a preponderance of evidence instead of a standard of reasonable doubt. The same judge stated that the “sex offender community could not be maintained without polygraph.”

In U.S. v. Lee (2003), the defendant appealed a condition of his release (polygraph), and the 3rd Circuit Court affirmed the conditions. In November 2000, Albert Lee was convicted in federal court on charges of transportation of child pornography, possession of child pornography, and enticing a minor by computer to engage in sex. When Lee appealed his sentence, the Court stated, “We find that the polygraph condition is reasonably related to the protection of the public, as well as the rehabilitation of the appellant. The polygraph testing could be beneficial in enhancing the supervision and treatment of Lee.”

In Jones v. Virginia (2003), the State Appeals Court affirmed a revocation based on failure to cooperate with post-conviction polygraph. In 2000, Sylvester L. Jones was convicted of taking indecent liberties with a child and given a split 5-to-3 sentence; his probation was revoked when he refused to cooperate with a polygrapher. “The defendant initially answered the polygraph examiner’s questions, but he ‘basically just froze up’ when the examiner asked questions about his involvement in an attempted abduction of an 11-year-old, which occurred during his probation. The defendant refused to answer further questions and ‘said that he thought he needed to talk to an attorney.’” The test was immediately stopped and never completed. His probation was revoked for a portion of the remaining sentence. In his appeal, Jones argued that he was asking for an attorney to be present, and the court stated that the right to counsel did not apply to non-custodial interviews.

In U.S. v. Dotson (2003), Dotson argued sentencing conditions, and they were affirmed by the 4th Circuit Court of Appeals in North Carolina. Robert Morris Dotson Jr. pleaded guilty to attempting to receive a child pornography videotape in commerce after a postal inspector posed as a pornography peddler and Dotson ordered child pornography videos. The court ruled that “the use of a polygraph test here is not aimed at gathering evidence to inculpate or exculpate Dotson. Rather, the test is contemplated as a potential treatment tool upon Dotson’s release from prison—as witnessed by the district court’s direction that the results of any polygraph testing not be made public.”

In U.S. v. Wilson (1998), the 6th Circuit Court affirmed post-conviction polygraph and stated that polygraphs are “tools to help the probation officer monitor defendants’ rehabilitation and compliance with release conditions.”

In State v. Travis (1994), the court found that while the defendant’s agreement to a probation condition requiring him to submit to a polygraph examination did not establish admissibility of the results, the defendant’s probation was subsequently revoked for non-compliance.

In U.S. v. Zinn (2003), the 11th Circuit U.S. Court of Appeals ruled in support of court-ordered polygraph. In a child pornography case, Karl P. Zinn was in possession of more than 4,000 images of child pornography stored on computer diskettes and compact disks. Zinn pleaded guilty and appealed post-conviction polygraph obligations. In its ruling the District Court stated, “[T]he results of the polygraph examination may not be used as evidence in court to prove that a violation of community supervision has occurred but may be considered in a hearing to modify release conditions.”

In Kansas v. Foster (2006), the defendant argued that his civil commitment was based on a psychological evaluation report that noted polygraph examinations taken while in sex offender specific treatment.  The Kansas Supreme Court overturned the commitment of the defendant, ruling that polygraph evidence is inadmissible in Kansas commitment proceedings, because the standard of proof in that state is beyond a reasonable doubt, and civil commitment hearings could lead to loss of freedom.

In U.S. v. Taylor (2003), the 11th Circuit Court found that polygraph testing is useful in promoting the treatment of sex offenders because “probationers fear that any false denials of violations will be detected.”

Although these legal rulings show no universal acceptance of post-conviction polygraph for evidentiary purposes in a court of law, the fact that post-conviction polygraph is constantly under the scrutiny of the court and can become part of the evidence used in court should convince post-conviction polygraph examiners to conduct examinations in the best possible manner.

Conclusion
This article has shown that post-conviction sex offender testing can be conducted with lower standards and a higher error rate or with higher standards and a lower error rate.  Which route is taken is a matter of decision and not necessity. From a community safety perspective, the importance of optimal post-conviction examinations is undeniable, and in this author’s opinion, the likelihood of going to court only increases the importance.

A vital tool in the community supervision of offenders for almost 40 years, post-conviction polygraph is, in this author’s opinion, “a giant step in the evolution of polygraph. That step can be forward, towards general acceptance in the scientific community, or backwards, towards who knows what”  (Blackstone, 1998). Highly accurate and validated techniques are available for post-conviction testing today, and new, customized techniques—based on validated principles—will be available tomorrow. 

While legal rulings to this date show no absolute acceptance of post-conviction polygraph, the fact of the matter is that a post-conviction polygraph has the same likelihood of showing up in a courtroom as any other. It is this author’s opinion that every examination should be conducted as though it were headed for the Supreme Court. If only one in one million post-conviction examinations makes it that far, that one test will have more impact on the polygraph profession that all of the others combined.

References

Abrams, S., & Ogard, E. (1986). Polygraph surveillance of probationers. Polygraph, 15, 174–182.

Ahlmeyer, S., Heil, P., McKee, B., & English, K. (2000). The impact of polygraphy on admissions of victims and offenses in adult sexual offenders. Sexual Abuse: A Journal of Research and Treatment, 12, 123–138.

Argenbright International Institute of Polygraph: Atlanta, GA. (1998). Test Question Construction. Basic school training manual, 4–5.

Bureau of Justice Statistics (BJS). (2005). Probation and Parole Statistics. U.S. Department of Justice, Office of Justice Programs.

Blackstone, K.E. (1998). Polygraph surveillance in probation and parole. Manual written for Stone Mountain Judicial Circuit.

Center for Sex Offender Management. (2000). Community Supervision of the Sex Offender: An Overview of Current and Promising Practices. Office of Justice Programs, U.S. Department of Justice.

Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). 509 U.S. 579.

English, K., Pullen, S., & Jones, L. (Eds.). (1996). Managing adult sex offenders: A containment approach. Lexington, KY: American Probation and Parole Association.

English, K., Jones, L., and Patrick, D. (2002). The polygraph plays a key role as a containment tool for convicted sex offenders in the community. Polygraph, 31(4), 240–253.

Frye v. United States. (1923). 293 F. 1013 (D.C. Cir.).

Handler, M. D. (2006). Utah probable lie test. Polygraph, 35(3), 139–148.

Human Rights Watch. (2007, September). No easy answers  sex offender laws in the U.S. Human Rights Watch, 19(4G), 3-4.   

Jones v. Virginia. (2003). http://www.courts.state.va.us/opinions/opncavwp/2637021.pdf

Kansas v. Lumley. (1999). WL 218704.

Keith, R. (2006, June 24). Illinois measure would move some from sex offender list. Associated Press.

Krapohl, C. (2006). Comparison of evidentiary and investigative decision rules. Polygraph, 35(1), 55–62.

Langan, P. A., & Levin, D. J. (2002). Recidivism of prisoners released in 1994. Washington, DC: U.S. Department of Justice. Bureau of Justice Statistics Bulletin.

Langan, P. A., Schmitt, E. L., and Durose, M. R. (2003). Recidivism of sex offenders released from prison in 1994. Washington, DC: U.S. Department of Justice. Bureau of Justice Statistics Bulletin. Retrieved from http:// www.ojp.usdoj.gov/bjs/pub/pdf/rsorp94.pdf

Minnesota Department of Corrections. (2007). Sex offender recidivism in Minnesota – April 2007. Retrieved from www.doc.state.mn.us

People v. Foster. (2006, Feb. 3). Case No. 91,324 Kan. Sup. Ct. Retrieved from http://www.kscourts.org/kscases/ctapp/2005/20050318/91324.htm

Raskin, D. C., & Honts, C. R. (2002). The comparison question test. In M. Kleiner (Ed.) Handbook of Polygraph Testing. London: Academic.

State v. Travis. (1994). 125 Idaho 1, 867 P. 2d 234.

Stern, P. (1997). Preparing and presenting expert testimony in child abuse litigation. Sage Publications.

Tennessee Bureau of Investigations Crime Statistics Unit. (2007). Recidivism study. Retrieved from http://www.timesfreepress.com/media/pdf/Sex_Offender_Recidivism_2007_8-14-07.pdf

United States v. Dotson. (2003). 324 F.3d 256, 261 12 (4th Cir.).

United States v. Lee. (2003). 315 F.3d 206, 213 (3d Cir.).

United States v. Saxena. (2000). 229 F.3d 1, 5 n.1 (1st Cir.).

United States v. Scheffer. (1998). 523 U.S. 303, 309 (1998).

United States v. Taylor. (2003). 338 F.3d 1280, 1284 n.2 (11th Cir.).

United States v. Wilson. (1998). No. 98-5373, 1998 WL 939987, at *3 (6th Cir.).

United States v. York. (2004). 357 F.3d 14, 22 11 (1st Cir.).

United States v. Zinn. (2003). 321 F.3d 1084, 1089-90 14 (11th Cir.). (02-10782).