Reply To: Federal judge holds Colorado registry is punishment; violates Eighth Amendment


My name is Will and I am a registered citizen in Tennessee. This ruling is monumental. No arguments there. I do hope and pray this gets upheld all the way to the S.C.O.T.U.S. There is one glaring lie that was left in Packingham that will play against this ruling being upheld. That lie is the “frightening and high” recidivism rate myth. Even though the author of the article that myth is based on admitted his claim has NO scientific validity, it is still mindlessly recycled in the high courts.

I found an article at:

Sex offender consequences in the Supreme Court – what’s ahead?

Here is what they say on the “frightening and high” myth:

At the same time, Sarma points out how several Justices evidently remain persuaded by now-discredited statistics showing “abnormally high” sex offender recidivism.

Packingham was not an all-around win for those disturbed by how we treat these people. In that case, we can see two indications that the Court continues to propagate the myth at the core of our nation’s moral panic: that individuals convicted of sex offenses are almost certain to commit more sex crimes if they are released.

The first flare came during the oral argument. At one point, Justice Sotomayor seemed to accept the basic claim that the sex offender recidivism rate is abnormally high. According to the argument transcript, she said “Yes. There’s a high statistical inference that recidivism will follow with one sexual crime to another . . . .” The second signal appeared in Justice Alito’s concurring opinion. In it, he wrote that “[r]epeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’ McKune, supra, at 33 (plurality opinion) . . . .”

If the Court is looking to its own past for its understanding of sex offender recidivism, it is no wonder that the justices continue to embrace the myth that the recidivism rate is alarming. In 2002, in McKune v. Lile, the Court described the risk of sex offender recidivism as “frightening and high.” It went further, citing a Department of Justice publication for the proposition that “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” This astronomical number is certainly frightening. But, it is also blatantly wrong.

A number of experts, researchers and journalists have stepped forward in recent months to illuminate the Court’s profound misstep in McKune. In the New York Times in March, Supreme Court reporter Adam Liptak pointed out that the lawyer for North Carolina in Packingham stated during the oral argument that “[t]his court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again.” Liptak explains that “there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.” Professor Ira Mark Ellman and Tara Ellman excavated the truth about the source Justice Kennedy relied upon in McKune: the DOJ publication cited one source for the 80 percent figure, “an article published in 1986 in Psychology Today, a mass market magazine . . . [that used 80% as] a bare assertion: the article contains no supporting reference for it.”

In reality, Sarma reports that David Feige recently compiled the real statistics:

The recidivism statistics the court cites are dead wrong as a matter of social scientific fact. In reality, sex offenders have among the lowest same-crime recidivism rates of any category of offender. Indeed, in the most comprehensive single study on reoffense rates to date, the U.S. Department of Justice followed every sex offender released in almost 15 states for three years. The recidivism rate? Just 3.5 percent. These numbers have been subsequently verified in study after study. The state of Connecticut Criminal Justice Policy and Planning Division did a five-year study that found a recidivism rate of 3.6 percent. A Maine study found that released sex offenders were arrested for a new sex crime at a rate of 3.9 percent. Government studies in Alaska, Delaware, Iowa, and South Carolina have also replicated these results—all finding same-crime recidivism rates of between 3.5 and 4 percent.

While the 80 percent number has been shown to be “pure rubbish,” North Carolina (and other states) relied on it to justify its broad internet restrictions. And, “rather than seize the chance to clear things up, the Court continued down the trodden path.” At oral argument,

Justice Sotomayor appeared to agree with the claim of a “high statistical inference” of recidivism. And, though Justice Alito was careful not to cite directly the debunked 80 percent figure, the concurring opinion relied on McKune to emphasize the notion that sex offenders are uniquely dangerous. (A dispute about Alito’s factual claims arose when the Washington Post ran a fact-check that was subsequently challenged by the National Review. Professor Carissa Byrne Hessick best clears up the confusion when she explains that Alito’s opinion is misleading, but not for the reason the Washington Post identified: “Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate. The problem with this paragraph is . . . the claim ‘[r]epeat sex offenders pose an especially grave risk to children.’ . . . [T]he facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.”) Alito’s opinion is not misleading on the scale of the “frightening and high” farce, but it certainly pours more fuel on the fire that is the myth that sex offenders are bound to commit more offenses, particularly against our children.

This is the DEEPLY ENTRENCHED mentality that has to be overcome before these laws start to fall.

Also, now residents in Colorado will now see how much back-room politics can sway a judge, I’m afraid. The state’s going to come at this ruling against their precious registry with the same lethal tenacity as a very large colony of yellow jackets who have just had their HUGE underground nest run over the top of by a lawn mower. Any of you who’ve ever mowed over a yellow jacket’s nest knows exactly what I’m talking about. While I want this to be a victory all the way up to SCOTUS, I would caution us all not to count our chickens before they hatch.