“This court has recognized that they have a high
rate of recidivism and are very likely to do this again,” argued Robert C. Montgomery before the U.S. Supreme Court, Montgomery 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,” reported Adam Liptak in the New York Times. 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, wrote Liptak.
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.
“Its
endorsement has transformed random opinions by self-interested nonexperts into
definitive studies offered to justify law and policy, while real studies by
real scientists go unnoticed,” the authors wrote. “The court’s casual approach
to the facts of sex offender re-offense rates is far more frightening than the
rates themselves.”
There are many ways to calculate recidivism rates,
and they vary depending on a host of distinctions. A 2014 Justice
Department report found, for instance, that sex offenders generally
have low overall recidivism rates for crimes. But they are more likely to
commit additional sex offenses than other criminals.
In the three years after release from prison, 1.3
percent of people convicted of other kinds of crimes were arrested for sex
offenses, compared to 5.3 percent of sex offenders. Those findings are broadly
consistent with seven
reports in various states, which found that people convicted of sex
crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in
time periods ranging from three to 10 years.
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