Colorado’s pricey polygraph testing of sex offenders under fire as critics target accuracy, expense
Psychologist calls state’s $5 million polygraph program “grossly excessive” as state legislature examines cost…
Colorado has spent more than $5 million to administer polygraphs on convicted sex offenders over the last seven years despite concerns that the tests are so unreliable they can’t be used as evidence during civil or criminal trials.
Polygraphs help officials decide which prisoners convicted of sex offenses are suited for release from prison by probing their sexual history, attitudes about their crimes and whether they are committing new offenses. They also guide how offenders on parole or probation are supervised.
“The polygraph really gives useful information,” said Lenny Woodson, administrator for the Colorado Department of Corrections’ Sex Offender Treatment and Monitoring Program. “And we’ve made it clear in our standards that it isn’t to be used in isolation. We’re using as many avenues as possible to make treatment decisions.”
But a bipartisan cross-section of legislators and a retired judge have joined with offenders and their families to question the validity of the tests. They contend too much weight is placed on what they argue is little more than junk science. Flawed polygraphs can complicate efforts for low-risk sex offenders to get paroled and lead to new restrictions for parolees or probationers, critics say. Failure to take the tests can lead to sanctions, including eventual revocation to prison.
Studies show that up to 70 percent of U.S. states polygraph sex offenders, but experts have testified that Colorado uses the tests aggressively, even polygraphing juvenile offenders for consensual sexting. Critics contend an entrenched and profitable cottage industry, rife with conflicts of interests, has grown up around polygraphing sex offenders in Colorado.
“To me, there is no question that it borders on a scam,” said Senate President pro tem Jerry Sonnenberg, R-Sterling. “We incentivize the people who give the polygraph tests to have inconclusive results so an offender has to go back and pay for another one on a more regular basis.”
Colorado’s polygraphing is “grossly excessive,” said Deirdre D’Orazio, a psychologist who serves as an expert on a high-risk sex-offender task force in California, during testimony in federal court in Denver in 2015. D’Orazio led a team of consultants that issued a report for the Colorado department of corrections in 2013 blasting how it manages sex offenders and how it uses polygraphs.
She returned to the state to testify for Howard Alt, then 51, who a decade earlier was convicted for having sex with a 15-year-old girl and possessing nude computer images of teenage girls.
After his release from prison, Alt had taken 28 polygraphs, often with competing results. The treatment provider that tested Alt had a “fiduciary incentive conflict” to fail him, D’Orazio said. The firm was “making money on outcomes that are not in the offender client’s favor” by requiring him to pay for more tests and treatment, she said.
A deceptive finding on one sex-history polygraph had prompted supervision officials to bar Alt, a former software developer, from accepting a job that would raise his salary from $60,000 to $200,000 annually. Months later, the polygrapher found Alt to be truthful on the same questions even though he did not change his answers, showing the sanction against him was unwarranted, D’Orazio said.
“It is not a scientifically valid procedure,” D’Orazio testified. “It has a high false-positive rate, which means misclassifying people who are telling the truth as being deceitful. So there is a lot of controversy about using the polygraph in high-stakes decisions.”
Even Alt’s supervised-release officer said he had worked hard to learn from his past crimes. He was contrite after serving six years in prison. He was free of new transgressions, with tracking software on his computer monitoring his compliance. He had re-established relationships with his former wife and his daughter, according to testimony.
“I had thought that clearing a poly and having a deceptive poly were similar to a drug test, where you either have a drug in your system or you don’t have a drug in your system,” the supervised release officer, Lisa Pence, testified. “It has been an education that it’s not.”
U.S. District Judge Marcia Krieger ruled Alt should be allowed to undergo parole supervision free from Colorado’s standards for sex-offender management, which require regular polygraph testing, and to take the new job.
Often called lie-detector tests, polygraphs measure physiological responses — such as blood pressure, respiration, pulse and changes in perspiration — that occur when a person is asked a series of questions. Subjects are hooked to monitors that measure those reactions, charting the results in peaks and valleys. The thinking is that certain physiological responses often are associated with deception.
In 2001, the National Research Council of the National Academy of Sciences determined, based on its research, that “there was little basis for the expectation that a polygraph test could have extremely high accuracy.” The psychological states often associated with deception also can arise in the absence of deception, such as anxiety, the academy said.
As controversies over polygraphs of sex offenders in Colorado have mounted, standards have changed, Woodson said. Under old standards, before sex offenders who were sentenced under the lifetime supervision law could become eligible for parole, they had to produce a nondeceptive polygraph assessment of their deviant sexual history along with meeting six other criteria. Now, mental health professionals and therapists may override failed polygraphs to recommend release, Woodson said.
“The new criteria isn’t as black and white as it used to be,” he said.
Still, polygraph failures are considered by the officials who recommend parole, he said. Once out on parole, sex offenders must take the tests every six months to determine how they are adhering to the terms of their release. An inconclusive or deceptive finding requires them to be tested within every 60 days until they produce a nondeceptive result, at a cost of $250 each. Results can lead to an offender being moved to more restrictive housing, being monitored more strictly or prompt an investigation that could result in return to prison.
Many offenders claim they’re so nervous when they take polygraphs that the tests are prone to error. Conversely, some hard-core offenders have learned how to fool the polygraph.
But Jeff Jenks, owner of Amich & Jenks Inc., a leading polygraph firm in the state, said the tests are “just another tool in the toolbox.”
He doubts claims by offenders that his firm’s polygraphs are harder to pass, he said. As for those who fail polygraphs they later pass, Jenks said usually the original failure occurs because there’s some deception or confusion that must be cleared up. Perhaps an offender hasn’t sought out a child but has had accidental contact with one, he said. Or they aren’t viewing hard-core pornography but have kept a Victoria’s Secret catalog, he said.
The state of Colorado, relying on court fees paid by those convicted of sex crimes, picks up the tab of the polygraphs for those who are in prison and also often for the indigent who are out on parole or probation. But when the state fund that pays for the tests runs out of money, parolees and probationers who don’t have the money to pay for them risk running afoul of their supervision requirements. Revocation to prison can occur for refusing to take the polygraphs, defense lawyers say.
A juvenile sentenced to probation for consensual sexting when he was a 16-year-old high school student in La Plata County, was among those who have had to take polygraphs. The teen had exchanged nude images with two girls, aged 15 and 17, he met at a Future Farmers of America conference. The case is now on appeal at the Colorado Supreme Court. The prosecution argued felony child exploitation charges were warranted because the teen had been accused separately of two sexual assaults in unrelated matters, of which a jury acquitted him.
“He had no problem passing the polygraphs, but they were expensive and intrusive,” said the teen’s stepfather, Chris Mimmack, who is director of the department of justice for the Southern Ute Tribe.
The first polygraph probation officials required cost the family $1,000, along with having to pay to travel to Albuquerque. Those costs hit at the same time the family was battling to keep their son at home since his sex offender classification barred him from having contact with children, including his younger brother. If the family loses the appeal to the higher court, the polygraphs will start up again, Mimmack said.
Such stories are prompting pushback from legislators, both Democratic lawmakers representing metro Denver as well as Republican lawmakers in rural areas. State Rep. Leslie Herod, D-Denver, said she became concerned after hearing about a constituent taking polygraphs related to consensual sexting as a juvenile. Joining her in considering legislation to restrict their use are Sonnenberg and Rep. Yeulin Willett, R-Grand Junction.
“Think of a juvenile having to take a polygraph about their sex history,” Herod said. “Think of a 13-year-old or a 14-year-old kid, and these questions you are asking are putting thoughts in their heads. That’s not managing risk. These questions are just offensive. And yes, juvenile polygraph responses tend to be inconclusive because, well, they’re kids, and they get scared and confused.”
The questions can include whether offenders have had sexual contact with animals, Jenks said in a 2012 deposition. Such history is “a big piece of the puzzle” in predicting whether offenders also will have human victims of differing ages, he said.
In a 2016 lawsuit against Jenks’ firm, a man convicted of raping a fellow high school student claimed the animal question was confusing. For example, the suit noted, an offender might not know how to answer if a dog, unprovoked, had mounted his leg. Jenks prevailed in the case by arguing the offender voluntarily waived his right to sue when he signed releases of liability before taking polygraphs.
In addition to the legislators, C. Dennis Maes, former chief judge of Pueblo District Court, has criticized the use of polygraphs in Colorado. He has written to the chief judges of all judicial districts in the state and to Nancy Rice, chief justice of the Colorado Supreme Court, urging a halt to polygraphing sex offenders, pointing out the results can’t be admitted as evidence during civil or criminal trails. After his retirement, he represented a sex offender on probation, and was shocked when the results of his polygraph were admitted as evidence during a court hearing.
“The Constitution applies to everyone,” Maes said. “It doesn’t apply to everyone except sex offenders. The Constitution was designed to protect those that might be the most easily attacked by the government, even sex offenders. You don’t see polygraphs in any other area of the law. You can be the most prolific bad-check writer ever and you don’t have to take them, but you do if you’re a sex offender.”