New York Times: “Vanishingly” little evidence of high re-offense rate

By Adam Liptak . . . Last week at the Supreme Court, a lawyer made what seemed like an unremarkable point about registered sex offenders.

“This court has recognized that they have a high rate of recidivism and are very likely to do this again,” said the lawyer, Robert C. Montgomery, who was defending a North Carolina statute that bars sex offenders from using Facebook, Twitter and other social media services.

The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.

But 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.

Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and that opinion did include a startling statistic. “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” Justice Kennedy wrote in the earlier case, McKune v. Lile.

He cited what seemed to be a good source for the statistic: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender,” published in 1988 by the Justice Department.

The guide, a compendium of papers from outside experts, is 231 pages long, and it contains lots of statistics on sex offender recidivism rates. Many of them were in the single digits, some a little higher. Only one source claimed an 80 percent rate, and the guide itself said that number might be exaggerated.

The source of the 80 percent figure was a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.

That’s it. The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal.

“Unfortunately,” Melissa Hamilton wrote in a new article in The Boston College Law Review, “the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.”

The most detailed examination of how all of this came to pass was in a 2015 article in Constitutional Commentary by Ira Mark Ellman and Tara Ellman, who were harshly critical of the Supreme Court.

Please read the remainder of this article in the New York Times.

Editor’s note: Melissa Hamilton (quoted above) will be a featured speaker at NARSOL’s June conference.

9 comments for “New York Times: “Vanishingly” little evidence of high re-offense rate

  1. Jim
    March 15, 2017 at 11:28 am

    Recent Pa Supreme Court Sorna retroactivity argument.

    https://m.youtube.com/watch?v=FI9O0igMs5Y

  2. In Search of Liberty
    March 9, 2017 at 10:57 am

    For at least 3-4, years I have attempted to explain to people exactly why there can be no high recidivism rate with RSOs; however, no one seems to understand what I have been saying so let me try this again. Recidivism: in a nut shell the word means “repeat” a crime over and over—correct? Ok, so now that we have that out of the way, let us focus on the position proponents of sex offender laws (SOLs) have been spouting for at least 15 years to justify SOLs and that is that registered sex offenders (RSOs) have a high recidivism rate (HRR). So let me explain, opponents of the HRR claim call it a “bald assertion”, I call it a damn lie. Here’s why. Every state in the US has in its criminal justice penal codes statutes called “Enhancement of Sentences”. Take this example from Texas. Say you have been arrested for robbery, the primary offense, however, you have a prior drug conviction from say 5 years ago. The prosecutor will put that prior conviction on your indictment for the purpose of enhancing your sentence should you be found guilty of the primary offense. Meaning this, the primary offense, i.e., robbery carries a sentence of say 5-15 years in prison, but that is for first offenders. With the prior drug case on the indictment, now the that 5-15 goes to 15-45 years in prison—get it? Stay with me now, because I’m going to show you something. Again, all 50 states have in their penal codes these types of enhancement laws. Before I go on, let me offer this peripheral dynamic here: since the late 90s, there has been an onslaught, a virtual siege by all 50 states on people who have committed SOs—right? With that in mind, just think, say a person commits 1 SO in say 2001, is arrested, tried, found guilty and is sentenced to a prison term and is subsequently paroled say 2005. But after his release he commits another SO 2 years later (2007) and is arrested again. But this time he has the 2001 conviction and is probably still on parole. You can be sure that the prosecution is going use that 2001 SO case to enhance the 2007 case in an attempt to put this guy away (keep in mind the hate they have against SOs) for at least 20 years! Remember what “Recidivism” means? Now take this same person here. Say he went to prison again, but instead of him doing that 20 years the he was sentenced to, the state parole board decides, well no, he doesn’t have to do that 20, we’ll let him out in 3 years! See where I’m going? In order for there to be a HRR there would have to be corresponding high parole rate for people committing SOs; in other words a fast turn around or a “Revolving Door” at the prison gates. It would have to be so because a second or third conviction for a sex crime, given the hate the state has for SOs, would naturally result in very long prison term. And this revolving prison door would have to be going in all 50 states in order for this pandemic of sex crimes to happening that proponents of these laws scream and holler about. Am I making sense here? Just crew on this rational for minute. And I will leave it at the.

  3. Jerry
    March 8, 2017 at 4:01 pm

    It is also sickening that the additional crimes listed as “sex offenses” have all come about due to Justice Kennedy citing an article based on an unsubstantiated evidence in a magazine aimed at the general public with no empirical value. With numerous lower courts using the same faulty wording as Kennedy in its opinions makes me ask the questions: Don’t judges and lawyers bother fact-checking sources in which court opinions are based? Why has it taken a Law Review article to point out the mess Justice Kennedy and his four brethren have caused with states and the federal sex offender registry?

    We don’t put persons convicted of felonious assault or robbery at gun or knifepoint on a list; therefore, there shouldn’t be any public shaming list at all. That said, if we insist on a list for persons who have committed “real” sex offenses, the list should only be available to law enforcement and not the public like it is in Canada and other western countries, and persons after a “reasonable” period of time (based on empirical studies by psychiatrists, psychologists, sociologists, and criminologists) should be able to come off of that list.

    I assert “real” sex offenses because urinating in public, possession of naked, non-graphic or sexually posed pictures of persons under age 18, consensual sex between a 19 year-old and a 16 year-old, a Brady Bunch situation where “Bobby” plays doctor with “Cindy,” or a situation where “mom” is bathing “junior” in the sink for his first bath and “dad takes a video with his phone and mistakenly sends it to someone other than his parents or in-laws should NEVER, EVER be considered a sex crime.

    I’m sick of knee-jerk reactionary laws by elected officials and courts that are based on unsubstantiated media hyperbole about the latest boogey man created by a special interest group that wants overreaction to an unsubstantiated so-called epidemic.

    It is my hope that the Michigan decision in the 6th Circuit Court of Appeals catches on before some other special interest group wants all men to have electronic devices connected to our brains so we can get put on a sex offender list for impure thoughts!

  4. Lin
    March 6, 2017 at 10:23 pm

    So, if 95% of sex crimes are committed by first time offenders, why aren’t all of these restrictions placed on everyone? According to them (courts), it’s not a punishment, right? So, what’s to prevent them from doing this to anyone for any reason; even if a crime hasn’t been committed? Apparently, the restrictions are not for what someone did, it’s for what someone might do.

    Wow, America could be crime free with restrictions, ankle monitors and the thought police.

  5. John W
    March 6, 2017 at 4:29 pm

    Justice Kennedy yelled “FIRE” in a crowed theater. His words were catastrophic.

    After reading and investigating this story. I’m thinking of the millions of lives that have been ruined, the millions of families that have been destroyed, and the billions upon billions of dollars that have been spent by the politicians and the courts stampeding for that proverbial “sex offender door”. Not just in the USA, but throughout the whole world. By no means, am I exaggerating.

    Kennedy had quoted 1 unsubstantiated statistic, from 1 article, which was published in 1 magazine. Than added to that, is the unabashed idealism that SCOTUS speaks “the whole truth and nothing but the truth,” which is than touted by politicians, prosecutors, lobbyists, storytellers and anyone else that can make money from it. This is truly an example of injustice.

  6. Jeremy
    March 6, 2017 at 11:42 am

    I would like to see a study performed that studies the general public’s propensity to be accused, arrested and convicted of a sex crime separated by age. Considering that over 95% of new sex crimes are performed by someone not on the registry, I think this number is significant. I would also like to see the current studies on recidivism of former sex offenders measure “offense-free” time periods for recidivism data. Currently, when the time is extended on the studies, the recidivism data includes those who have been convicted of two or more offenses therefore corrupting any data about first time convicts. After both studies have been conducted, I would like to see a comparison of the general public versus the recidivism rate of a first time offender after certain time periods. I think it would be important to know when those numbers either match or come close to matching.

    I’ve seen some studies that include bits and pieces of this data, but it has never been compared in a scientific study as I am suggesting. From the data I’ve read though, it appears that a first time offender’s chance at recidivism matches a general public person’s chances of committing a sex crime after about 7-8 years of remaining offense free. If my assumption is verified, it would give us a new leg to stand on.

    While I don’t think that a compromise in our fight is something we want, it may end up being necessary, although I hope not. The compromise this could bring is that we could bring the benefit of the doubt to the lawmakers and state that a first time offender is, by all intensive purposes, reformed after remaining offense free for ten years. This could help us at the very least fight lifetime restrictions and reduce them to no more than ten years.

    • Lin
      March 6, 2017 at 10:18 pm

      Soooo, using their logic, if 95% of sex offenses are committed by first time offender , should all of society have the restrictions? You know, we just want to prevent anything from happening and this could prevent a sex crime from happening in the first place. (sarc)

      I don’t get how they could say that this isn’t punishment. If it isn’t punishment, what’s to stop them from placing these restrictions on everyone? Hey, it’s not a punishment, right? It’s in the name of safety.

      • Jeremy
        March 7, 2017 at 7:55 pm

        Careful what you wish for…

        • Lin
          March 8, 2017 at 1:16 pm

          Lol, I’m not wishing – just trying to point out that their logic is flawed.

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