Supreme Court consistently relies upon bogus studies about sex offender recidivism

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By Ira Ellman . . . Proponents of criminal justice reform never talk about sex offenders. They’re political untouchables subject to lifelong restrictions that continue long past their confinement, restrictions justified as necessary to protect the public from their propensity to re-offend. Two Supreme Court decisions established that justification. But they rely on a scientific study that doesn’t exist.

“Frightening and High”

McKune v. Lile, 536 U.S. 24, 33 (2002) rejected, 5-4, Robert Lile’s claim that Kansas violated his 5th Amendment rights by punishing him for refusing to complete a form detailing prior sexual activities that might constitute an uncharged criminal offense for which he could then be prosecuted. The form was required for participants in a prison therapy program; refusing to join the program meant permanent transfer to a higher security unit where he would live among the most dangerous inmates and lose significant privileges, including the right to earn the minimum wage for his prison work and send his earnings to his family. Justice Kennedy explained the treatment program helped identify the traits that caused “such a frightening and high risk of recidivism” among sex offenders—a rate he said “has been estimated to be as high as 80%.” The following year in Smith v. Doe, 538 U.S. 84 (2003) the Court upheld Alaska’s application, to those convicted before its enactment, of a law identifying all sex offenders on a public registry. It reasoned that the ex post facto clause was not violated because registration is not punishment, but merely a civil measure justified because the “risk of recidivism posed by sex offenders” is “frightening and high”, 536 U. S. at 34.

The idea that sex offenders repeat their crimes at high rates has fed legislation imposing increasingly harsh post-release burdens on them, nearly all triggered by being on a sex offender registry. Registrants may face residency restrictions sometimes severe enough to exclude them from entire cities and prevent them from living with their families, “presence restrictions” barring them from using public libraries or parks with their families, formal exclusion from many jobs, and informal exclusion from many more. The registration requirement typically extends for decades, and in some states, such as California, for life, with no path off the registry for most registrants. Courts have usually turned back challenges to registration and the consequences that flow from it; a Lexis search finds that in 91 cases the court’s opinion quotes Justice Kennedy’s dramatic statement that the sex offender recidivism rate is “frightening and high”. But is it? Do those convicted of sex offenses really re-offend 80% of the time, or anything close to that?  (Visit here to continue reading)

Or visit here to read the full article that will appear in Constitutional Commentary later this year.

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5 Thoughts to “Supreme Court consistently relies upon bogus studies about sex offender recidivism”

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  1. Karen Baker

    It would be interesting to know which groups are behind the erroneous reports on recidivism.

    1. Gwen

      Someone needs to get on the ball and see what will happen with all these high ranking federal employees who were using government computers to hook up with the Ashley Madison website. Dept of Homeland Security, Justice Dept, and others…. All the articles are saying it is not a crime. Really?? It is a crime to use govt credit cards for personal use and their are strict rules about visiting non govt sites. Investigate all of them, find out how they paid, what other websites did they use and get the truth. Let’s get them all on the sex offender registry. A full blown investigation should be started now!!

  2. charles pettus

    My questions are these: how could it be that seemingly intelligent men and women, specifically, federal court judges and state and federal legislators, not know a) that sex offender laws violate a bevy of constitutional protections, e.g., ex post facto, due process, et el and b) not understand that sex offender (SO) laws, specifically, registration/residency laws cannot and will not protect any one from any thing? I will answer that for you and also say that I am giving them the benefit of the doubt and say a) they are intelligent and b) that they do know. Call me a conpiracy theorist but down in my gut I feel that something else is afoot with SO laws. The US Supreme Court holding that SO laws are civil and not punitive is like a person telling you a muddied 200 lb pig as a beautiful 10 lb AKC poodle. They know good and damn well SO laws are meant to persecute! It’s retribution plain and simple. As to the laws themselves, registration/residency restrictions, you would have to be: a) very naive or b) very stupid to think that an inanimate object, i.e., a data base of names, can really keep the community safe from a real preditor. How can it? I’ll make 3:1 odds to anyone who can rationally explain to me how it can. And please, don’t tell me…well, I can go on the public website and see if any SOs are in my zip code…” Pleazzzz. So what! If that person is a real predator he/she will find a way to do what they do—regardless. So the community is only getting a false sense of security. And is that what courts and legislators really want to give the public? If so then the public has to be really, really naive or really, really stupid! Which takes me back to my original conspiracy theory that someting else is afoot with SO laws. Specifically, I believe SO laws are “pre-cursor” laws. I believe these laws are a set-up for, or meant to pave the way for, other more Draconian and onerous laws coming down the pike. And stripping the constitutional rights of the public has to be a big part of it. People, something is going down.

  3. NH Registrant

    In NH, Kelly Ayotte, while she was Attorney General, pushed for even harsher penalties and restrictions on Registrants using faulty and discredited studies. Now, she’s a Senator and the Koch Brothers want her to stay there because she is part of the “tough on crime” cult of politicians. The Kochs are now for “Prison Reform”? Yet they back someone like Kelly Ayotte? Something is fishy here!

  4. Chris

    In light of the tragic shooting of the television crew today in Virginia, I think it’s time the registry got a serious reconsideration. As explained by forensic Psychologists in regard to vengeful people such as the shooter; people get to this point after harboring a serious resentment or what they perceive as something unfair. The registry could inadvertently put the public at an uninvited risk for a very long time, there must be a wiser, thoughtful alternative. The passage of time increases the risk. The Dr. further went on to say there is no predictor or characteristics necessarily, but usually a form of stress that build over time.