How the Supreme Court has promoted myths about sex offender registries

By  Jacob Sullum —  March 5, 2023 marks the 20th anniversary of Smith v. Doe, a U.S. Supreme Court decision that approved retroactive application of Alaska’s sex offender registry, deeming it preventive rather than punitive. That ruling helped propagate several pernicious myths underlying a policy that every state has adopted without regard to its justice or effectiveness.

Writing for the majority in Smith, Justice Anthony Kennedy took it for granted that collecting and disseminating information about people convicted of sex offenses made sense as a public safety measure. But that premise was always doubtful.

The vast majority of sexual assaults, especially against children, are committed by relatives, friends or acquaintances, and the perpetrators typically do not have prior sex-offense convictions. That means they would not show up on a registry even if someone bothered to check.

It is therefore not surprising that research finds little evidence to support Kennedy’s assumption that publicly accessible registries protect potential victims. Summarizing the evidence in a 2016 National Affairs article, Eli Lehrer noted that “virtually no well-controlled study shows any quantifiable benefit from the practice of notifying communities of sex offenders living in their midst.”

To reinforce the logic of registries, Kennedy averred that “the risk of recidivism posed by sex offenders is ‘frightening and high.’” He was quoting his own opinion in an earlier case, which in turn relied on an unsubstantiated estimate from a source who has publicly and repeatedly disavowed it.

According to Kennedy’s paraphrase, “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” By contrast, a 2003 Bureau of Justice Statistics study found that the three-year recidivism rate for sex offenders was 3.5%.

Studies covering longer periods find higher recidivism rates, but still nothing remotely like 80%, even for high-risk offenders. Despite its empirical emptiness, Kennedy’s “frightening and high” claim has been quoted again and again in legal briefs and judicial opinions across the country.

Although registries are ostensibly based on the risk of recidivism, they apply indiscriminately to broad classes of people, even when there is little reason to think they pose an ongoing danger. Dissenting in Smith, Justice Ruth Bader Ginsburg noted that Alaska’s law “applies to all convicted sex offenders, without regard to their future dangerousness.”

One of the men who challenged Alaska’s law, Ginsburg pointed out, “successfully completed a treatment program” and “gained early release on supervised probation in part because of his compliance with the program’s requirements and his apparent low risk of reoffense.” A court determined that “he had been successfully rehabilitated,” based partly on “psychiatric evaluations” indicating that he had “a very low risk of re-offending” and was “not a pedophile.”

That man nevertheless was required to renew his registration four times a year for the rest of his life. The online registry included his name, photograph, criminal record, address, physical description, date of birth and place of employment, along with the license plate numbers of vehicles he used.

Kennedy minimized the consequences of publicly branding people as presumptively dangerous sex offenders, calling it “less harsh” than revocation of a professional license. But as Justice John Paul Stevens noted in his dissent, there was “significant evidence of onerous practical effects of being listed on a sex offender registry,” ranging from “public shunning, picketing, press vigils, ostracism, loss of employment and eviction” to “threats of violence, physical attacks, and arson.”

Those predictable costs, combined with legal restrictions on where registrants may live and which locations they may visit, undermine rehabilitation and continue to punish registrants long after they have completed their sentences. That is why several state and federal courts have concluded, contrary to what the Supreme Court said in Smith, that registration schemes are punitive in effect.

Activists who oppose registration will call attention to that reality during a vigil at the Supreme Court on Tuesday morning. They are clearly right in arguing that the illusory benefits of public registries cannot justify the burdens they impose.

Jacob Sullum is a senior editor at Reason magazine.

4 thoughts on “How the Supreme Court has promoted myths about sex offender registries

  • February 1, 2024 at 4:44 am

    It is so damn important to remember history! Who was chief justice at the time of the SOR regime’s weighing? Where he was raised is important to his predisposition concerning constitutional philosophy and discipline. Looking back at Smith V Doe03 the minority attacked in the somewhat subtle way by pointing to a case directly implicating that yet disclosed upbringing. In short, Mr. Rehnquist was raised steeped in two fundamental and formative trains of thought, Catholicism & collectivist socialism (unionism). The case brought forth by the minority to confront that basis in Smith V was City of Hartford v Norma Grace Constantineau. That citing specifically annoyed Rehnquist because he knew the history of it. There was some technical question concerning Ms. Constantineau’s “standing” to form her federal appeal in the fist place; the state hadn’t weighed in first ( before the fed). Thus in that sense, it was embarrassing, for a unionist from WI to admit the conceptual and abhorrent faults of his upbringing. Catholics in his mind could do no wrong. (They’d survived Nazism in Germany & Italy) Keep in mind cops were unionized and Catholic too( Irish Catholics mostly). That particular part of the state was built by union labor, every house, ever bar and tavern, everything tied and dominated politically by to those two cultural dogmas.

    To understand my point one must first be familiar with the history of Milwaukee and beer and yes open socialist thought brought from old world Germans and Dutch Catholics to southeast Wisconsin. You see in the late 1980s and early 1990s the Catholic church was under tremendous scrutiny as lawyers were filing suits about choir boys and molestation, and the yellow journalist hyped the issue. The ambulance chasing lawyers were cashing in on sex and cover-up and Cardinal conspiracy. In Smith V Doe, all the Catholics voted in lockstep. I believe they caved on the punitive question, but they didn’t do it in a vacuum.
    First and foremost what upholding did was optically divorce the predominantly Catholic Supreme Court from the Roman Catholic Church at large. If the Smith V Doe majority had rejected the regime or the ex post component, it could have been viewed as an extension of the Cardinal conspiracy. It most certainly would have been an unpopular choice. In my opinion, Here I am solely pinpointing the leverage applied to that majorities’ decision, not the money behind the act itself. For that I gotta talk big tech, otherwise known as purveyors of database. They were busy hyping their new machines plethora of uses and greasing the wheels

  • August 27, 2023 at 8:31 am

    If all the evidence shows registries are not effective and punitive in nature, how is it no one has been able to successfully challenge them and have them ended? Why can no one answer this question? What will it take to bring them to an end?

    • February 19, 2024 at 10:19 pm

      its all about emotions when you are on the registry everyone sees the label in NC where it says child exploitation in the (whatever degree) and just assume your john Wayne Gacy but sell crack outside a school ,that’s okay , not knowing that as NCRSOL points out most sex offender are family members, no the guy who found dirty pictures on a web site is the real culprit its narrow mindedness plain and simple get the facts ,and as long as people make that perception to them it is real

  • August 27, 2023 at 5:08 am

    All of these stories and reports remind me of David and Goliath. One of these days one of our stones will hit between the eyes of someone and this monster that has been created will be deceased. My sincere gratitude is extended to all of those who continue to fight for the many of us who can’t fight. It gives me hope.


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