polygraphs: liberty interests and the rule of law

The Pueblo (CO) Chieftain published a bold, important statement about the use of polygraphs:

All uses of polygraphs in the legal system should be abolished.

Earlier, the Denver  Post reported that the Colorado Sex Offender Management Board includes the owner of a polygraph company and when the use of polygraphs are discussed, that man recommends the use of polygraphs. The Denver Post said the use of polygraphs "borders on a scam."

It is good to see polygraphs exposed as the junk science they are. I blogged about the Post stories here.

In the Chieftain, an opinion piece by Dennis Maes, a retired chief Pueblo district court judge, calls out...

...the involvement and participation of the judiciary, probation and the Department of Corrections in perpetuating the use of polygraphs. Why is this revelation significant? Because the Colorado Supreme Court and the Colorado Court of Appeals have both condemned and prohibited the use of polygraphs in court proceedings. 

Good point. If courts have prohibited polygraph results, why are they still mandating their use for sex offenders? It is hard to explain any better than Maes does:

According to existing Colorado law, the results of polygraph examinations are per se inadmissible for any purpose in criminal and civil proceedings in Colorado courts because they are scientifically unreliable. Simply put, they are worthless because they have zero evidentiary value and are, therefore, irrelevant. [My emphasis throughout.]

If they cannot be used, they obviously should not be ordered by the court. To order a useless report paid for by taxpayers is not only fiscally irresponsible but unconscionable. 

Despite established law, the judiciary, probation and DOC continue to require polygraphs. This practice is a clear assault on the Rule of Law which embodies the belief that the law applies equally to all individuals and institutions, including the judiciary, with no exceptions. The Rule of Law is a cornerstone of a free democratic society.

The supervision of a sex offender on probation requires the sex offender to sign terms and conditions of probation. which can only be ordered and changed by the court. A stock condition is the requirement to submit to polygraph examinations. Failure to comply with the terms and conditions subjects the sex offender to punitive sanctions, including the loss of liberty interests.

The argument will be advanced by probation and others that probation will not be revoked based solely on the results of a polygraph examination. There are those who would disagree. Nevertheless, current probation standards, approved by the court, provide that a sex offender may be regressed in treatment if the offender produces a deceptive polygraph. The regression may obviously be based solely on the results of a polygraph.

Regression? The practice of making someone back up to a previous point in his treatment. More time in treatment can affect how much freedom the parole or probation officer allows the offender.

Liberty interests.

A further dilemma faced by an offender occurs when a provider ignores an objection registered by the offender or offender's attorney to submit to a polygraph based on existing state law. Many, if not all, providers and probation officers treat the proper objection as obstruction and a violation of probation either threatening to or filing revocation proceedings. Said behavior is a violation of due process.

Many, if not all, providers will refuse to treat an offender who refuses a polygraph. To exacerbate the problem, many providers treat the refusal as a violation, which subjects the offender to punitive action even in the case when the court might not require the treatment.

Read that again. Treatment providers can impose punitive actions on an offender for refusing to submit--or objecting!--to a polygraph, even when the treatment is not required by the courts.

When a treatment provider can punish a client for questioning treatment requirements, the treatment provider is clearly not a part of the therapeutic world.

In the interest of full disclosure, concerns about the current polygraph practice and public funding for polygraphs have been shared by way of protest with Chief Justice Nancy Rice, Rick Raemisch, executive director of the Colorado Department of Corrections, and the chief judges of each judicial district. The responses submitted by the Supreme Court and DOC appear to carve out exceptions to the law where none exist and certainly not recognized by state law.

Maes is impatient:

It is perplexing why the judiciary has been so resistant to ridding the courts of a practice condemned by its own appellate courts.

He says that if the courts will not follow established law, the Legislature should tackle the subject. One suggestion from Maes:

First, the Legislature immediately could suspend any state funding for polygraph examinations. Said action would not only be a firm confirmation of the significance of the Rule of Law but the fiscally responsible thing to do as stewards of the taxpayer's money. To continue a practice that has been debunked by the courts simply defies logic.

This is truly a breath of fresh mountain air.

Maes does not question the utility of polygraphs because that question was settled long ago when courts called the tests scientifically unreliable. He is angry that courts ignore those findings.

He lays the blame for the continued use of junk science at the feet of the judiciary, probation, and the Department of Corrections.

He recognizes what families of sex offenders already know:

To be certain, there will be many who have little or no concern whether sex offenders are treated fairly.

...and delivers a final blow at those who continue to treat sex offenders as less than worthy of treatment that follows the law:

What is important, however, is that society ensures that the sanctity of the Constitution be safeguarded by protecting the rights and protections it guarantees to all without exception.

Readers: Make sure that probation and parole offices and treatment providers read Maes' fiery blast. If you are still awaiting sentencing, make sure your attorney sees this and raises a protest to any polygraph requirement.

Polygraphs are not just a waste of money and time. They may not be allowed in court but they are currently being used to revoke parole or probation.

Liberty interests. Rule of law.