Corrupting legacy of a flawed study published by Psychology Today

By JOHN COVERT . . . Based on a false premise, Justice Anthony Kennedy asserted in the case of Smith v Doe, 538 U.S. 84 (2003) [Please Note: the correct case is McKune v Lile, 536 U.S. 24 (2002)] that “the risk of recidivism posed by sex offenders is frightening and high,” as high as 80% for those who are untreated. This, he contended, made it vital that the public be able to identify these individuals in the interest of public safety.

Justice Kennedy’s statements were wrong then and they are wrong now. They were based on an article in a lay publication, Psychology Today, not a peer-reviewed journal, that was written by a sex offender counselor, not a researcher, who earned his living selling his counseling program to prisons. The author has since disavowed these numbers and said they were never meant to be used as a basis for any type of judicial ruling.

It is now clear, based on decades of data, that those who have committed sexual offenses rarely recidivate. Indeed, while the recidivism rate for drug offenses exceeds 80%, study after study finds the three-year recidivism rate for people who commit sex offenses to be 3.5%, much lower than that claimed by Justice Kennedy. This low recidivism rate is in line with the finding that the vast majority of sexual offenses — as high as 95% — are committed by people who are first-time offenders and thus are not on the registry at all.

University of Miami law professor Tamara Rice Lave found an Arizona state government analysis showing only 2.4% of the 209 individuals released in 2001 had committed a new sex offense within the next three years. ”[T]he … belief that sex offenders have a high rate of reoffending is not supported by the evidence,” she concluded.

Professor Ira Ellman, retired law professor at ASU, points out: “Many assume that most registrants committed violent rapes or molested children, but they would be wrong.” In fact, sex offense registries sweep in individuals with vastly different backgrounds who pose vastly different levels of risk. Individuals have been placed on the registry for such acts as teenagers having consensual sex, public urination, or sexting.

Ellman said “if the registry’s main purpose is to let us monitor and warn people about those who committed violent, coercive, or exploitative contact sex offenses, we dilute its potential usefulness when we fill it up with people who never did any of those things.”

Several of the Supreme Court justices in Doe wrote separately.

Justice David Souter wrote, “The fact that the [registration process] uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones.”

Justice Stevens noted that registrants and their families justifiably live in fear of vigilante justice. They have experienced “profound humiliation and isolation as a result of the reaction of those notified. Employment and employment opportunities have been jeopardized or lost. Housing and housing opportunities have suffered a similar fate. Family and other personal relationships have been destroyed or severely strained. Retribution has been visited by private unlawful violence and threats.”

The late Justice Ruth Bader Ginsberg complained that the registry completely ignores the possibility of rehabilitation. “Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation,” Ginsberg wrote. “However plain it may be that a former sex offender poses no threat of recidivism he will remain subject to long-term monitoring and inescapable humiliation.”

The American Law Institute, authors of the Model Penal Code, an independent organization consisting of thousands of lawyers, judges and scholars, recently concluded a nearly ten-year process to help guide states in updating their laws, making positive recommendations for reform to the sex offender registry.

The Supreme Court’s decision 20 years ago has led states to implement increasingly onerous laws that feed the public’s fear of people who commit sexual offenses while at the same time doing nothing to enhance public safety. Decades of data show unequivocally that the sex offender registry is a failed social experiment. It’s time for a new paradigm in sex offender policies, one that considers real studies by real scientists.

John Covert is with Arizonans for Rational Sex Offense Laws, ARSOL

SOURCE: Arizona Capitol Times