New York Times: “Vanishingly” little evidence of high re-offense rate 4


By ADAM LIPTAK . . . Last week at the Supreme Court, a lawyer made what seemed like an unremarkable point about registered sex offenders.

“This court has recognized that they have a high rate of recidivism and are very likely to do this again,” said the lawyer, Robert C. Montgomery, who 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.” 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.

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.

Please read the remainder of this article in the New York Times.

Editor’s note: Melissa Hamilton (quoted above) will be a featured speaker at NARSOL’s June conference.


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4 thoughts on “New York Times: “Vanishingly” little evidence of high re-offense rate

  • jerry

    Adam Liptak, what really has been bothering me, is not so much the lack of empiricle evidence supporting the frightening and high comments that saturate every level of courts in this country from 2002 to 2017, but how the paragraph has been constantly misquoted. The paragraph in the Psychology Today article read; “The recidivism rate for “UNTREATED” sex offenders is 80%, and that’s frightening and high, but the recidivism rate for TREATED sex offenders is around 15%”. Now I am a treated sex offender who successfully completed treatment while incarcerated. I would like to know why the treated offenders were thrown in with the untreated offenders while these laws were being drawn up. There should have been some considerations taken into account for those of us that sought treatment and turned our life around

    • TImothy E

      Jerry,

      My friend, while you are lamenting the group classification of all S.O.’s, are you not, in turn lumping all of us who DID NOT partake in those so-called “treatment” programs as prone to recidivism? I refused to sit in those programs during my 20 years in prison; know what? I am rated as “low risk” while almost all of those who sat in said programs were rated either “moderate” or “high” risk during our pre-release evaluation.

      Then, there are a boat load of studies which show the so-called treatment programs tend to give a higher rate of re-offending for those who partake thereof, than for those who did not partake. You seem it imply that only those who sat in said programs can turn their lives around. Is it possible that maybe, just maybe, it is an individual thing finding the desire in the heart, and not an exclusive trait for only those who sat in those “programs?”

      Since my release 6 years ago, I have completed a “double major” in Pre-law & Paralegal Studies and shall soon being the task of seeking a related Masters for a fully accredited and well respected university. Besides these accomplishments, I have built a nice luthier business. I also have prison friends who never sat in those so-called “programs” and are doing well, despite the draconian laws of society whose jackboots are upon all of our necks. Just something to ponder, my friend……..

      https://sosen.org/blog/2016/10/…/so-why-are-the-reconviction-rates-so-important.htm..

  • Anthony

    The Assistant Solicitor Attorney General that argued the registration laws in front of the U.S. Supreme court used fraudulent statistical data (presented false evidence) with no independent corroboration to support his claims to have this horrible decision rendered by the Justices. Another constitutional challenge will be submitted to overturn this unconstitutional law.