GateHouse: High Court has chance to set the record straight

Matthew T. Mangino

GateHouse Media

September 16, 2017

How did a statement made 30 years ago, in a magazine article with no supporting documentation, set in motion a series of some of the most draconian laws in U.S. history?

In 1986, Robert Longo, a prison sex offender treatment counselor in Oregon, and Ronald Wall, a therapist who worked with him, wrote in an issue of Psychology Today that “Most untreated sex offenders released from prison go on to commit more offenses ... Indeed, as many as 80 percent do.”

Psychology Today, although a respected publication, isn’t exactly Time Magazine when it comes to mainstream distribution and circulation. Yet, that quote took hold with the criminal justice system and among lawmakers, policymakers and decision makers across the country.

The claim really gained traction in 2002. That year, U.S. Supreme Court Justice Anthony M. Kennedy wrote in a decision that upheld a mandatory prison therapy program for sex offenders, “the rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” a number he called “frightening and high.”

The following year, Kennedy repeated that claim in a case which upheld retroactive application of registration requirements for sex offenders. As of 2015, according to Reason Magazine, Kennedy’s phrase has been reused in more than 100 opinions and briefs filed with the court.

According to Reason, there was never any evidence to support the assertion, and research conducted during the period within which it proliferated indicated that it was not even remotely true. “Nearly every study -- including those by states as diverse as Alaska, Nebraska, Maine, New York and California as well as an extremely broad one by the federal government that followed every offender released in the United States for three years -- has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent.”

What has been the result of broad acceptance of this markedly misinformed data? According to the New York Times, for the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program.” The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of a prison.

But unlike prison, the therapeutic program -- which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years -- has no fixed end date. Rather, program administrators decide which patients are safe enough to release. According to the Times, in the 24 years the program has existed, not a single “patient” has ever been fully released.

Nearly 5,400 people are currently civilly committed in sexually violent predator programs in 20 states and by the federal Bureau of Prisons. According to The Marshall Project, 13 states allow this practice for people who committed their crimes as juveniles. Despite having no adult convictions, these young people are held years into adulthood.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, according to the New York Times, “politicians have become ever more inventive in dreaming up ways to corral and marginalize those convicted of a sex related crime.”

On Sept. 25, the Supreme Court will have a chance to take a step toward setting the record straight. They will decide whether to hear two cases involving offenders who claim new sex offender registration requirements are punishing them a second time for a single offense.

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 www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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