Attorneys on both sides of a lawsuit by a Hope doctor seeking to overturn a new state law on Medicaid practice eligibility have offered the federal judge presiding in the case dueling science involved in the study of repeat offenses committed by registered sex offenders.
Dr. Lonnie Joseph Parker is joined by two patients, both women, in suing the Arkansas Department of Human Services to prevent the enforcement of Act 1504 of the 89th Arkansas General Assembly, and seeks to overturn the law as unconstitutional under the U. S. Constitution.
Act 1504 amends Arkansas Code 12-12-913(a) to open access to registration records of the Arkansas Sex Offender Registry to the Division of Medical Services of the Department of Human Services for Medicaid provider applicants, and prohibits anyone required to register as a sex offender on federal or Arkansas registries from providing goods and services through Medicaid.
U.S. District Judge Billy Roy Wilson has taken arguments by both sides under advisement on the principal issues, but has also called for submissions by both attorneys of scientific literature on recidivism rates among registered sex offenders.
Parker, according to the federal court filing, was convicted in federal court in Arkansas in 2000 of possessing child pornography and was sentenced to federal prison, after which he was required to register as a Level 1 sex offender in Arkansas, indicating that he had no prior history of such offenses.
Parker also had his medical license to practice in Arkansas restored by the Arkansas Medical Board in 2005.
Parker has maintained he is innocent, and contended at trial and on appeal that he was acting in concert with federal authorities in receiving and possessing certain child pornography images via e-mail.
In response to Wilson's order on scientific literature, Parker's attorney, John Hardy, of Little Rock, argues that, while there are a number of studies and reports on various aspects of the subject, one conducted for the U. S. Sentencing Commission as part of a report to Congress is exactly on point.
“The Commission selected 610 'non-production offenders' sentenced during 1999 and 2000 for the study from a total of 724 offenders during that time frame,” Hardy wrote. “'Non-production offenses' include distribution, transportation (including shipping and mailing), receipt, and possession of child pornography.
“These 610 individuals were in the community for a minimum of two years after release from prison or the commencement of their probation,” he continues. “They were tracked after release from prison for a minimum of two years with an average follow-up of 8 Ĺ years. 90.5 percent of them were sentenced to prison (with an average term of 33 months), with the other 9.5 percent receiving probation.
“Dr. Parker was very likely a member of this cohort,” Hardy states.
Arguing from the Sentencing Commission Study as being the study that is most on point, Hardy writes that, “Plaintiff did not find any specific studies concerning whether licensed physicians who have previously been convicted of possession of child pornography were a danger to their Medicaid patients or others.”
Page 2 of 2 - Arguing that the consensus of the studies he presents is that offenders with no previous criminal history or mental problems are, over time, extremely unlikely to commit a “contact sexual offense,” Hardy points out that Parker has been out of prison for nine years.
He argues that registered sex offenders are more likely to commit “general recidivism,” or non-sexual crimes, after release than they are to commit “sexual recidivism”, based upon the study.
“Under those classifications, the study showed a general recidivism of any kind from all types of sex offenders of 30 percent (183 of 610 offenders), while the sexual recidivism rate was 7.4 percent (45 of those 610 cases),” Hardy writes.
DHS attorney J. Mark White argues in his submission that there is an underlying point in all of the literature he cites that there is the presence of a likelihood of an unreported previous physical sexual offense for all sex offenders.
White argues from the U. S. Sentencing Commission study to make that point citing by reference a “general recidivism” rate of 30 percent among non-contact, non-production Internet child pornography offenders sentenced between 1999 and 2000. He notes that the “sexual contact recidivism rate” among the entire study group was 3.6 percent, but argues that of the subsequent offenders, 20.6 percent were arrested more than once, but he does not say for what crimes.
White argues the most extensively from an update in 2009 of a 2000 study done at Butner Federal Prison, where inmates volunteered information concerning themselves.
“Of the 155 men convicted of child pornography offenses in the study conducted in the Butner federal prison, 74 percent of the subjects had no documented history of contact sexual offenses against minors, but by the end of treatment, 85 percent of the sample admitted having committed at least one hands-on sexual offense against a child,” White wrote. “...Our findings show that the Internet offenders in our sample were significantly more likely than not to have sexually abused a child via hands-on act.”
Hardy takes issue with the science of the Butner study, noting that prior to 2005, it was the only study widely available to federal authorities, but that it was completely rejected by an Iowa federal judge in U. S. v. Johnson (S.D. Iowa 2008).
Quoting the ruling, Hardy writes, “The Court will not accept science conducted in secret. Second, the Court will not look past the shortcomings of this Study merely because the Study is unique or new... In sum, the Court will not consider the results of the Butner Study unless and until either the Government or the researchers provide transparency for its methodology and a compelling explanation for its many apparent failings.”
Wilson has not said when he will rule on the preliminary injunction motion by Parker.