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 

“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.

Molnar and her allies have considered lobbying the Legislature to ban these ordinances, but they’ve found lawmakers unreceptive in the past to any bill perceived to benefit sex offenders. So she decided to go to court.

Molnar enlisted a small army of parents and siblings of sex offenders to compile a list of towns with such ordinances, and assembled research showing that the rules can actually make the public less safe. She enlisted Denton lawyer Richard Gladden. He was already representing Taylor Rice, who as a 20 year-old had sex with a 14 year-old he met online and now, after his conviction for sexual assault, was legally barred from living with his parents because their house was too close to a high school’s baseball field. Gladden had found a 2007 opinion by then-attorney general (now governor) Greg Abbott saying that towns with fewer than 5,000 residents — which fall into a particular legal category in Texas — are not authorized by the state to enact such restrictions on their own.

Gladden sent letters threatening lawsuits to 46 city councils. Within two months, half of them had repealed their ordinances. Gladden and Molnar are currently suing 11 of the remaining towns.

Restrictions on where registered sex offenders can work, live, and visit vary widely from state to state and city to city. Over the last few years, Molnar and her counterparts in other states have come to the same conclusion: Politicians aren’t going to help them. “Who wants to risk being called a pedophile-lover?” says Robin van der Wall, a North Carolina registrant on the board of the national group Reform Sex Offender Laws.

So the activists have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns. Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose. (Please continue reading at The Marshall Project)

This article was published in collaboration with The Texas Observer.