The ‘Frightening and High’ Factoid Still Stalks Courts

Last May the Arizona Supreme Court overturned a state ban on bail for people accused of sexual assault “when the proof is evident or the presumption great,” concluding that the categorical exclusion violated the constitutional right to due process. Critics of that decision are urging the U.S. Supreme Court to take up the case, Arizona v. Goodman, and their arguments highlight the continuing influence of misconceptions about the “frightening and high risk of recidivism” among sex offenders.

That phrase comes from Justice Anthony Kennedy’s plurality opinion in the 2002 Supreme Court case McKune v. Lile, where he claimed “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” Kennedy’s characterization of the recidivism risk as “frightening and high” has been echoed in scores of decisions upholding restrictions on sex offenders. But the original source for his recidivism estimate was an uncorroborated assertion in a 1986 Psychology Today article by a therapist who has repudiated the number, saying he is “appalled” at its lingering impact.

An example of that impact can be found in a brief from Arizona Voice for Crime Victims (AVCV), a group that wants the Supreme Court to hear Arizona v. Goodman and uphold the state’s bail ban. The brief, which was written by AVCV lawyer Steven Twist, Dallas attorney Allyson Ho, and University of Utah law professor (and Volkoh Conspiracy contributor) Paul Cassell, mentions “frightening and high” recidivism rates three times; it also refers to “frighteningly high” and “alarmingly high” recidivism rates. Yet the numbers cited in the brief fall far short of the discredited estimate that Kennedy cited in McKune:

  • “Studies have found that 17 percent of sex offenders were convicted of another sex offense within five years of release—with 21 percent reconvicted within ten years.” That is based on an analysis of studies that included rapists and child molesters but not other kinds of sex offenders (such as people caught with child pornography).
  • “One study shows that over a five-year period, 21.4 percent of sex offenders were rearrested for violent offenses—nearly identical to the 21.7 percent of homicide convicts who were rearrested for violent offenses during that same period.” That number is for people convicted of rape or sexual assault. If anything, it indicates that sex offenders don’t have unusually high recidivism rates.
  • “A Department of Justice study found that a significant number of sex offenders—14 percent—not only reoffend, but also do so while out on bail.” That figure applies to people charged with rape who were arrested while on bail; only 3 percent were charged with felonies, and it’s not clear how many of those were sex offenses.
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