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.

JACOB SULLUM — This Sunday marks the 20th anniversary of Smith v. Doe, a Supreme Court decision that approved the 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 percent.

Studies covering longer periods find higher recidivism rates but still nothing remotely like 80 percent, 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.

And while the idea of indefinite preventive detention might sound un-American or something out of the film “Minority Report,” the larger problem is that “civil commitment,” like hundreds of other regulations imposed on those required to register, has been justified by assertions about the recidivism of sex offenders. But those assertions turn out to be entirely belied by science.

For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake. The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.

But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release. In the 24 years it has existed, not a single “patient” has ever been fully released. There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, politicians have become evermore inventive in dreaming up ways to corral and marginalize those forced to register — a category which itself has expanded radically and come to include those convicted of “sexting,” having consensual sex with non-minor teenagers or even urinating in public.

These sanctions include being forced to wear (and pay for) GPS monitoring and being banned from parks, and draconian residency restrictions that sometimes lead to homelessness. In addition, punishments can include, on pain of re-incarceration, undergoing interrogations using a penile plethysmograph, a device used to measure sexual arousal. They have also included requirements that those on the registry refrain from being alone with children (often including their own) and barred from holding certain jobs, like being a volunteer firefighter or driving an ice cream truck.

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.” The problem is this: The 80 percent recidivism rate is an entirely invented number.

A few years ago, Ira Ellman, a professor of law at the University of California, Berkeley, and Tara Ellman set out to find the source of that 80 percent figure, and what he found shocked him. As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986.

That article was written not by a scientist but by a treatment provider who claimed to be able to essentially cure sex offenders though innovative “aversive therapies” including electric shocks and pumping ammonia into offenders’ noses via nasal cannulas. The article offered no backup data, no scientific control group and no real way to fact-check any of the assertions made to promote the author’s program.

Nonetheless, because that 80 percent figure suited the government lawyers’ aim of cracking down on sex offenders, Solicitor General Olson cited it, and Justice Anthony Kennedy, seemingly without fact-checking it, adopted the figure in a 2002 opinion that Justices William Rehnquist, Antonin Scalia and Clarence Thomas joined. (Justice Sandra Day O’Connor concurred.) Their decision blew open the doors to the glut of sex offender restrictions that followed.

But in the 30 years since that Psychology Today article was published, there have been hundreds of evidence-based, scientific studies on the question of the recidivism rate for sex offenders. The results of those studies are astonishingly consistent: Convicted sex offenders have among the lowest rates of same-crime recidivism of any category of offender.

Nearly every study — including those by states as diverse as Alaska, Nebraska, Maine, New York and California — as well as an extremely broad one by the federal government that followed every offender released in the United States for three years, has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent. Needless to say, there is a tremendous difference between claiming that 80 percent of offenders will re-offend and that more than 95 percent of them won’t. And it is in that basic difference that the Supreme Court’s doctrine has done its most lasting damage.

This profound misrepresentation of social science has led to extraordinary real-world harms. For example, while the public almost universally embraces the strict residency restrictions the Supreme Court and lower courts have ratified, study after study has shown that rather than reduce sexual violence, these residency restrictions actually increase recidivism.

The merciless enforcement of the conditions routinely placed on those on the registry has resulted in the constant re-incarceration of offenders — not because they have committed new crimes but for technical violations of the conditions themselves, like failure to maintain a driving log, being late for curfew or failing to pay polygraph fees.

Indeed, a study by the California Department of Corrections concluded that 91 percent of sex offenders returned to California prisons were returned for these technical violations, while only 1.8 percent were returned as a result of having committed a new sex crime. In short, the entire scheme of registration and restriction that the Supreme Court condoned 15 years ago in McKune v. Lile has done enormous violence to a huge number of Americans now branded forever as sex offenders.

Now more than ever, Americans should be able to look to our highest court and expect decisions that are based on reason and grounded in science rather than fear. The court must rule wisely and bravely, including being willing to acknowledge its mistake and finally correct the record. More than 800,000 Americans have needlessly suffered humiliation, ostracism, banishment re-incarceration and civil commitment thanks to a judicial opinion grounded in an unsourced, unscientific study. Simple decency and perhaps more important, intellectual honesty demands better.

–David Feige, a television writer and a former public defender in the Bronx, is the director of “Untouchable,” a feature documentary about sex offender laws.

“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.

At the same time, Brian Schnee, a police officer in Durham, was doing his job, working to identify registered sex offenders in the state who were accessing sites like Facebook. He came across Packingham’s post and recognized the face but not the name on the page, “J.r. Gerrard.” Because Schnee knew Packingham to be a sex offender the officer got a search warrant for Packingham’s residence, where he found proof that Packingham was, indeed, “J.r. Gerrard” and that he had, indeed, opened the Facebook account.

Packingham’s glee soon ended. He was indicted and ultimately convicted of violating a state law that makes it a felony for any person on the state’s sex offender registry to “access” any “commercial social networking Website” that he or she “knows” does not restrict membership to adults. The sweeping measure, enacted in 2008, applies to approximately 20,000 North Carolina residents who have been placed on the offender registry for one reason or another. It has been used in more than 1,000 prosecutions like the one against Packingham.

But none of those other cases generated a successful U.S. Supreme Court appeal. For six years now Packingham has fought the charges, in and out of court, on the simple premise that it should not be a crime to express online joy (on Facebook or any other site) about the demise of a parking ticket. And prosecutors and state attorneys have been equally adamant since 2010 that the law that ensnared Packingham is a valid exercise of state power to protect the Internet’s most vulnerable surfers from great harm.

Next week, the justices in Washington will hear oral arguments in the Packingham case. The primary dispute centers around Packingham’s free speech rights: does the First Amendment protect his ability to be on Facebook as a sex offender? But just below the surface is a dispute about how far the state may go to punish someone for acting without criminal intent. As Packingham’s lawyers put it: “[E]arly First Amendment cases establish basic principles restricting criminal punishment to persons proved to have acted with both ‘an evil doing hand’ and ‘an evil meaning mind’” and Packingham is guilty of neither.

(Please continue reading at The Marshall Project)

Our Opinion: Sex offenders’ social media ban needs a rewrite

Not all sex offenders are created equal.

A well-intentioned but overreaching state law barring registered sex offenders from using Facebook, Twitter and other forms of social media — whether or not their crimes involved either children or the internet — is headed for the U.S. Supreme Court.

Durham resident Lester Gerard Packingham appealed his 2012 conviction of maintaining a social media profile as a sex offender, arguing that the state law is unconstitutional. The N.C. Court of Appeals agreed with Packingham in August 2013, but the state Supreme Court upheld the statute last year in a 4-2 ruling.

The federal high court agreed last month to let Packingham plead his case that the law violates the First Amendment by squelching ex-convicts’ online speech.

Under N.C. General Statute 14-202.5, sex offenders are prohibited from accessing commercial social networking websites that extend membership to minors. That sounds reasonable and necessary for pedophiles, but it’s a head-scratcher for offenders who have groped or sexually assaulted other adults.

Writing for a unanimous three-judge panel, Court of Appeals Judge Rick Elmore wrote in 2013 that the vague law “fails to target the ‘evil’ it is intended to rectify” — namely, child sexual predators trolling the internet for their next victim.

The state Supreme Court reversed the appellate panel, finding that the law regulated conduct rather than speech and that its definition of verboten websites left offenders with “ample alternative channels for communication.” Justices even provided examples, including recipe-sharing sites, job boards and a television news station’s website.

There’s likely to be a lot of legal hairsplitting over the state court’s “ample alternative channels” language, which is also the focal point of a friend-of-the-court brief filed by First Amendment scholar Eugene Volokh.

Rather than getting into the weeds of that technical argument, we’ll appeal instead to common sense. What good does it do to arbitrarily ban all sex offenders from Facebook when most of those convicts have no interest in scoping out young users?

Registered sex offenders are about as reviled as any category of criminal. But the same label applied to rapists and child molesters is also used to tag teenagers who share racy photos or are punished for sexual relationships with slightly younger classmates.

Not only is North Carolina able to distinguish the former from the latter, it already does. The state applies the term “sexually violent predator” to those convicted of certain crimes and “recidivist” to those who reoffend. Those designations are included on the publicly searchable sex offender registry.

Instead of wasting taxpayer money to defend a carelessly crafted law in the nation’s highest court, why not revise the statute to exclude only child sexual predators from social networking sites?

Lawmakers have two choices: Stand behind sloppy work and risk a ruling that could open the floodgates to all sex offenders or fix their mistake and protect children by shutting out those who pose a genuine danger.  (Source)

Writing for the majority, Justice Robert H. “Bob” Edmunds reasoned that since the statute under review in Packingham concerned only conduct, and not speech, the impact to registered citizens’ First Amendment rights was merely incidental to the otherwise legitimate interest of the state in prohibiting such conduct. He further reasoned that there were already “ample alternative means” through which registered citizens could participate in expressive forums open and available to them. His reasoning was strained and tortured and his opinion was summarily dismembered by the dissent penned by Justice Robin E. Hudson.

For additional information and analyses of what’s at stake for the community of registered citizens throughout the entire nation, please read Eugene Volokh’s piece in the Washington Post. Prof. Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law and filed an Amicus Brief in support of the petition for Certiorari in the Packingham case.