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 

The complete Tentative Draft, 600 pages long, addresses the substance of the full range of sexual assault crimes. It contains the Blackletter provisions setting forth the code’s statutory language for each section, official Comments interpreting and explaining each section, and Reporter’s Notes providing background and citations to sources relied upon by the Reporters in the draft. The original version of the Model Penal Code was published by the ALI in 1962. It was and remains highly influential. According to Wikipedia more than half the states enacted criminal codes that borrowed heavily from the MPC, and even courts in non-adopting states have been influenced by its provisions. It was a forward looking document. One important and influential contribution of the 1962 MPC was the removal of noncommercial sexual acts between consenting adults, such as sodomy, adultery and fornication, from the criminal law. In 2001, however, the Institute concluded that revision of some portions of the 50-year-old MPC had become necessary. This project, revising the portions of the MPC addressing sexual assault, is one of three separate revision projects on different portions of the code. The original MPC contained no provisions on a sexual offense registry; the inclusion of that topic in the MPC is among the most significant revisions to it now approved by the Institute.

The MPC’s registry provisions are contained in 11 sections. Including an official comment providing an Executive Summary, they are set forth in the final 120 pages of Tentative Draft No. 5. While the MPC adopts something called a registry, its substance departs significantly from existing registry laws, federal and state, as the Comments acknowledge. Key differences are:

1. Many sexual offenses that are registrable in the federal and most state laws are not registerable under the MPC provisions, which provide that no offense is subject to registration other than those it specifies as registerable. Only these five offenses (as defined by other sections of the MPC) trigger a registration obligation:

• Sexual Assault by Aggravated Physical Force or Restraint
• Sexual Assault by Physical Force, but only when committed after the offender had previously been convicted of a felony sex offense
• Sexual Assault of an Incapacitated Person, but only when committed after the offender had previously been convicted of a felony sex offense
• Sexual Assault of a Minor, but only when the minor is younger than 12 and the actor is 21 years old or older
• Incestuous Sexual Assault of a Minor, but only when the minor is younger than 16

2. There is no public notification that individuals are on the registry, whether through a public website or any other means. Access to the registry is limited to law enforcement personnel. The knowing or reckless disclosure of registry information to others is a felony.
3. The maximum registration period for the small group who remain on the registry is 15 years, but those who do not re-offend, and comply with parole, probation, or supervised release conditions, are removed after ten years. Failure to register cannot be the basis of parole or probation revocation; it is punishable only as a misdemeanor offense.
4. General rules that required location monitoring of persons convicted of a sexual offense are barred, as are most restrictions on residency, access to schools or the internet. Judges could impose such restrictions in particular cases, but only on persons currently required to register, and only upon an evidentiary showing that there are special circumstances in that particular case that justify it, and only for a limited period of time. In no case may a judge require public notification. Mandatory restrictions on employment applicable primarily to persons convicted of a sexual offense that are created by other state laws are not repealed by the MPC, but anyone subject to them may petition a court for relief from the employment bar.

The American Law Institute, established in 1923, is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The current Council of the ALI includes 7 members of the United States Courts of Appeal as well as Justices on the highest courts of California, Arizona, Texas, and New Jersey. The recommendations of the ALI Council become the official position of the Institute when (as with these revisions to the MPC contained in T.D. 5) they are adopted by the members, which consists of leading attorneys, law professors, and judges who have been nominated and elected to membership.

Dr. Ellman is a Distinguished Affiliated Scholar with the Center for the Study of Law and Society at the University of California, Berkeley and a Charles J. Merriam Distinguished Professor of Law and Affiliate Professor of Psychology, Emeritus, at Arizona State University. He is the author of a recent paper “When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime.”