Where Justice Kennedy finds his facts: Who cares? He doesn’t check them

By Radley Balko . . . In the 2002 case McKune v. Lile, the Supreme Court upheld a Kansas law that imposed harsher sentences on sex offenders who declined to participate in a prison rehab program. The substance of the Kansas law the court upheld isn’t as important as the language the court used to uphold it. In his opinion, Justice Anthony Kennedy reasoned that they pose “such a frightening and high risk of recidivism” which he wrote “has been estimated to be as high as 80%.” Five year earlier, in Kansas v. Hendricks, the court allowed the states to detain sex offenders found to have a “mental abnormality” can be continued to be held indefinitely under civil commitment laws, even after they’ve served their sentences. The majority justified its decision by explaining that commitment hearings are administrative, not criminal, and the intent of such laws is treatment, not punishment.

The year after the McKune decision, the court then upheld an Alaska law that puts sex offenders on a public registry, even those who were convicted before the law was passed, which would seem to be a violation of the Constitution’s prohibition of ex post facto laws. Here too, Justice Kennedy noted that “a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is ‘frightening and high.’”

In a forthcoming article in Constitutional Commentary, Ira Mark Ellman and Tara Ellman note that Kennedy’s magic words about the recidivism rate of sex offenders — frightening and high — have been cited 91 times by courts around the country, most in the course of upholding state laws allowing for severe ex post facto punishments that can last from years, to decades, to a lifetime. They include registration requirements for which compliance can range from burdensome to impossible; residency restrictions that effectively restrict ex-offenders to living in the shadows (or under a bridge); and restrictions that can make it nearly impossible to find a job, forge meaningful relationships, worship, or generally participate in civilized life.

The scary thing is, as the Ellmans explain, there’s no empirical data to support Kennedy’s oft-cited phrase, and the statistic Kennedy himself cited is paper thin.

McKune provides a single citation to support its statement “that the recidivism rate of untreated offenders has been estimated to be as high as 80%”: the U.S. Dept. of Justice, Nat. Institute of Corrections, A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender xiii (1988). Justice Kennedy likely found that reference in the amicus brief supporting Kansas filed by the Solicitor General, then Ted Olson, as the SG’s brief also cites it for the claim that sex offenders have this astonishingly high recidivism rate. This Practitioner’s Guide11 itself provides but one source for the claim, an article published in 1986 in Psychology Today, a mass market magazine aimed at a lay audience. That article has this sentence: “Most untreated sex offenders released from prison go on to commit more offenses– indeed, as many as 80% do.” But the sentence is a bare assertion: the article contains no supporting reference for it.

But perhaps the author was merely offering an estimate based on his training and expertise. The problem there is that he had little of either.

He is a counselor, not a scholar of sex crimes or re-offense rates, and the cited article is not about recidivism statistics. It’s about a counseling program for sex offenders he then ran in an Oregon prison. His unsupported assertion about the recidivism rate for untreated sex offenders was offered to contrast with his equally unsupported assertion about the lower recidivism rate for those who complete his program.

So the evidence for McKune’s claim that offenders have high re-offense rates (and the effectiveness of counseling programs in reducing it) was just the unsupported assertion of someone without research expertise who made his living selling such counseling programs to prisons.

The Ellmans write that another quote from the solicitor general’s brief in McKune has been widely cited in supporters of these laws and by the courts that have upheld them. Here’s that quote, with its source:

Sex offenders exact a uniquely severe and unremitting toll on the Nation and its citizens for three basic reasons: “[t]hey are the least likely to be cured”; “[t]hey are the most likely to reoffend”; and “[t]hey prey on the most innocent members of our society.” United States Dep’t of Justice, Bureau of Justice Statistics (BJS), National Conf. on Sex Offender Registries (National Conf.) 93 (Apr. 1998).

The Ellmans explain why that source too is bogus:

The “report” is merely a collection of speeches given at a 1998 conference of advocates for sex offender registries. The collection’s cover sheet disavows any Justice Department endorsement of its contents. The “least likely” phrase is taken from a speech in this collection given by a politician from Plano, Texas who never claimed any scientific basis for it. Indeed, she did not even claim it was true. What she actually said was that it is a statement she likes to make. The Solicitor General’s representation of this statement as a Justice Department conclusion about the nature of sex offenders was at best irresponsible.

The real rate of sex offender recidivism is complicated and difficult to calculate, but it’s nowhere near 80 percent. In fact, people convicted of sex offenses re-offend at a lower rate than any other class of crimes. The Ellmans point to a meta-study of 8,000 sex offenders which found that even among high-risk offenders, 20 percent had committed another sex crime within five years, and 32 percent had within 15. Of the high-risk offenders who had gone 16 years without re-offending (about two thirds of them), the study found no example of one of them committing another crime. Among low risk offenders, the risk is minimal. “About 97.5% of the low-risk offenders were offense-free after five years; about 95% were still offense-free after 15 years,” the Ellmans write. (Please continue reading at The Washington Post)

Written by someone outside of NARSOL

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