Where do legislators get the idea that sex offenders are so dangerous that they must be tracked via the sex offender registry?
Ira Ellman, an Arizona State University law professor, lays it all out for us.
McKune v. Lile, 536 U.S. 24, 33 (2002) rejected, 5-4, Robert Lile’s claim that Kansas violated his 5th Amendment rights by punishing him for refusing to complete a form detailing prior sexual activities that might constitute an uncharged criminal offense for which he could then be prosecuted. The form was required for participants in a prison therapy program; refusing to join the program meant permanent transfer to a higher security unit where he would live among the most dangerous inmates and lose significant privileges, including the right to earn the minimum wage for his prison work and send his earnings to his family.A treatment program held over the heads of inmates is a threat, not a treatment, and yet the Supreme Court said the prison could continue that program.
Justice Kennedy explained the treatment program helped identify the traits that caused “such a frightening and high risk of recidivism” among sex offenders—a rate he said “has been estimated to be as high as 80%.” The following year in Smith v. Doe, 538 U.S. 84 (2003) the Court upheld Alaska’s application, to those convicted before its enactment, of a law identifying all sex offenders on a public registry. It reasoned that the ex post facto clause was not violated because registration is not punishment, but merely a civil measure justified because the “risk of recidivism posed by sex offenders” is “frightening and high”, 536 U. S. at 34.
The idea that sex offenders repeat their crimes at high rates has fed legislation imposing increasingly harsh post-release burdens on them, nearly all triggered by being on a sex offender registry. [My emphasis.]Where did Justice Kennedy get that 80% figure?
McKune provides just one citation for its much-quoted statement: a 1988 Justice Department “Practitioner’s Manual”. That reference likely came from the amicus brief supporting Kansas filed by the Solicitor General, then Ted Olson, which also cites it. This Practitioner’s Guide itself provides but one source for the claim, but it’s no scientific study. It’s a 1986 article from Psychology Today, a mass market magazine aimed at a lay audience, which had this sentence: “Most untreated sex offenders released from prison go on to commit more offenses–indeed, as many as 80% do.” Freeman-Longo, R., & Wall, R, Changing a lifetime of sexual crime, Psychology Today (1986). That sentence is a bare assertion with no supporting reference. Nor did its author have the scientific credentials needed to qualify at trial as an expert on recidivism. He was a counselor, not a scholar, and the article containing the sentence isn’t about recidivism statistics. It’s about a counseling program for sex offenders he then ran in an Oregon prison. His unsupported assertion about the recidivism rate for untreated sex offenders was offered to contrast with his equally unsupported assertion about the lower recidivism rate for those who complete his program. [Again, my emphasis.]Ah. The number came from an unqualified source trying to sell his own program by fabricating numbers to make his program look effective. Snake oil salesman.
Professor Ellman goes on to explain numbers that come from legitimate research, numbers that tell us what my readers already know: sex offenders have an extremely low rate of reoffense. It is worth reading the whole thing.
The label “sex offender” triggers fear, and disgust as well. Both responses breed beliefs that do not yield easily to facts. That’s why even those politicians now urging criminal justice reforms conspicuously omit mentioning sex offenses when they argue for less punitive policies that would facilitate the offenders’ reintegration into civil society. Unfortunately, the Supreme Court has fed the fear. It’s become the “go to” source that courts and politicians rely upon for “facts” about sex offender recidivism rates that aren’t true. Its endorsement has transformed random opinions by self-interested non-experts into definitive studies offered to justify law and policy, while real studies by real scientists go unnoticed. The Court’s casual approach to the facts of sex offender re-offense rates is far more frightening than the rates themselves, and it’s high time for correction. Perhaps there’s now hope it may soon happen.Using fake numbers to gin up fear and disgust has real effects on real people, real families. Families are destroyed by those fake numbers.
Once again, we see the danger of a simplistic label applied by legislation to a very broad range of offenders. That label--and the fear and disgust that accompany it--encourage legislators to ignore offenders who could benefit from criminal justice reform with only a tiny risk to society.
The fear and disgust driving sex offender laws and regulation come from a phony number.
Ellman's article is a good introduction to reliable numbers derived from methodical research.
Educate your legislators.