A single Supreme Court justice’s stupidity ruins thousands of lives, families

By Steven Yoder . . . In the early 1980s, rehabilitation counselor Robert Longo could hardly have known that his work with convicted sex offenders would make him a minor celebrity. At the time, he was running a program at the Oregon State Hospital to treat and rehabilitate prisoners who had committed sex crimes. It was a new field, and Longo says they were using what at the time were considered innovative approaches: aversive conditioning, administration of Depo-Provera to reduce testosterone levels, and penile plethysmography to measure arousal.

In 1985, documentary filmmaker John Zaritsky heard about Longo’s work and gave him a call. Oregon’s program was featured prominently in the resulting HBO special, Rapists: Can They Be Stopped? While the film was being shot, word got around about Longo’s methods, which were seen as a potential solution to ending rape. He started getting invitations to appear on Oprah — he was on five times in all, he remembers — and now he was being quoted in the New York Times and national magazines.
The following year, Longo and a colleague were invited to write an article for Psychology Today about what could be achieved through treatment programs like his. In it, they included this line: “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do.”

It’s not that the statement was an invention — Longo says it was an estimate based on the numbers he was seeing in his program for some subpopulations of sex offenders who didn’t finish treatment. And he points to other research from that era that reached similar conclusions — for example, the 1990 Handbook of Sexual Assault noted in a literature review that up to 71 percent of untreated exhibitionists had been found to re-offend in studies with follow-up periods from four to nine years. Still, Longo’s assertion wasn’t meant as an estimate of rates among offenders in his own program, which he says ranged from 10 to 15 percent depending on the offense. The point of the piece was to show that effective treatment works.

But the sentence, it turned out, would change history.

The Constitution bans ex post facto punishment — the retroactive application of new laws to crimes committed before those laws were enacted. In 1994, Alaska’s legislature passed a measure that put those who’d committed a sex offense onto the state’s new Internet registry — even if they’d been convicted before the law passed. In 2003, the United States Supreme Court upheld the law, overturning a lower court’s decision.

In arguing for the majority, Justice Anthony Kennedy relied on his own language from an earlier decision. It characterized the risk of a sex offender committing another sex crime as “frightening and high” — as high as 80 percent, Kennedy held.

In an essay last summer in the journal Constitutional Commentary, Arizona State University law professor Ira Ellman traces Kennedy’s “80 percent” reference to a 1998 Department of Justice practitioner’s guide for treating incarcerated male sex offenders. In turn, Ellman found that the guide cited just one source — Longo’s quote in Psychology Today.

(Please read Steven’s full article here)