Saturday, September 5, 2015

GateHouse: Supreme Court perpetuates sex offender myths

Matthew T. Mangino
GateHouse Media
September 4, 2015 
Onerous sex offender registration laws have pulled together unlikely alliances. Victim advocates have begun standing up for sex offenders in litigation and legislative battles across the country.

Chris Dornin, a former New Hampshire State House reporter, wrote in an article for Corrections Magazine detailing the efforts of Cleveland and Texas rape crisis centers toward dismantling Ohio’s residency restriction law. The crisis centers intervened on the side of the plaintiff, a sex offender challenging the law before the Ohio Supreme Court, as an ex post facto punishment.

The centers argued, “More onerous sex offender registration and community notification laws threaten to harm the very people they are intended to protect and to undermine goals of community safety and treatment of offenders. These laws perpetuate myths and create a false sense of security.”

How does a myth take hold? When it comes to the law, there is no better place to perpetuate a myth than the U.S. Supreme Court.

In 2002 and 2003, Justice Anthony Kennedy wrote the opinion in two cases that dealt with sex offender restrictions. In one case, McKune v. Lile, Kennedy wrote the recidivism rate “of untreated (sex) offenders has been estimated to be as high as 80%.” The following year he wrote in Smith v. Doe, the risk of recidivism posed by sex offenders is “frightening and high.”

The problem is, according to a paper recently released by Ira Mark Ellman and Tara Ellman, those statistics cited by Justice Kennedy and repeated over and over again by judges and legislators across the country are not true.

In McKune, the solicitor general provided a single citation to support its statement “that the recidivism rate of untreated offenders has been estimated to be as high as 80%.” The authority for that assertion was the U.S. Department of Justice, National Institute of Corrections, A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender released in 1988.

According to the Ellmans, the Practitioner’s Guide itself provides only one source for the claim, a 1986 article published in the magazine Psychology Today. The article suggests, “Most untreated sex offenders released from prison go on to commit more offenses–indeed, as many as 80% do.” The sentence is a bare assertion by the author--the article contains no supporting reference for it.

A growing body of research calls into question the wisdom of the “tough on crime” campaign to crush sex offenders. According to Dornin, the Canadian Department of Public Safety sponsored numerous studies of sex offender recidivism, including several that followed large groups of offenders over many years. One study found a little more than one in ten sex offenders recidivated within five years, much lower than the national recidivism rate.

Recent American studies suggest even lower rates. One by the Indiana Department of Corrections, entitled “Juvenile Recidivism, 2010,” suggested that only two of 71 juvenile sex offenders released in 2007 had committed new sex offenses within three years. That’s a 2.8 percent sex offense recidivism rate, reported Dornin. The comparable rate for hundreds of adult sex offenders in Indiana the same year was 1.05 percent three years after release.

No one condones the conduct of sex offenders, especially those who prey on children. The laudable goal of criminal sanctions should be to promote public safety and prevent future victims. Any appropriate civil restrictions should do the same. Legislation that is counter to that goal--legislation that actually puts people in danger--has no place whether or not sanctioned by the U.S. Supreme Court.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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