“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.

The specific program he entered, how he performed and whether he was seen as a high risk for re-offending, though, are all confidential under Ohio law.

Whatever treatment Golsby received, police say it didn’t stop him from the Feb. 8 abduction, rape and slaying of Reagan Tokes, a 21-year-old Ohio State University student. Golsby has been linked to the crime through DNA that was on file from his previous conviction.

Tokes’ death occurred three months after Golsby, 29, was released from prison for that 2011 attack, in which he was accused of forcing a woman to perform oral sex at knifepoint in a Grove City parking lot.

The Golsby case represents the public’s worst fears about convicted sex offenders — that they don’t respond to treatment and will strike again if released.

But those are myths, reinforced whenever such cases get extensive media coverage, said Melissa Hamilton, a law professor who has written extensively about sex offenders.

“These incredibly horrible stories occur, the media picks them up and the public reacts,” she said. “It stokes fears of sex offenders as people who are likely to re-offend. But the statistics don’t support it.”

Hamilton, a visiting criminal-law scholar at the University of Houston Law Center, said one of the most comprehensive studies on sex offenders was issued by the U.S. Department of Justice in 2003. It tracked more than 9,000 sex offenders released from prisons in 15 states, including Ohio, in 1994. Three years after their release, 5.3 percent of the offenders had been arrested for another sex crime.

“I wouldn’t characterize that as high-risk,” Hamilton said.

The sex offenders who were most likely to offend again were men whose victims were boys, not adults, the study found.

Two years ago, Ohio prison statistics showed that 11 percent of released sex offenders returned to prison on sex charges, compared with a recidivism rate of 28.7 percent for all inmates.

The Justice Department study made a similar finding: “Sex offenders in the study had a lower overall re-arrest rate than non-sex offenders.”

Please continue reading in The Columbus Dispatch

Cases like this might seem to argue for even tougher controls on ex-offenders convicted of sex crimes. But new research indicates that the existing sex-offense regime in the US actually may be making repeat sex crimes more likely.

Since the mid-1990s, legislators have devised increasingly byzantine rules for those who have been punished. Those include sending out postcards when an offender moves to a neighborhood, placing warning signs outside offenders’ homes, setting restrictions on what offenders can do on Halloween, and devising “presence” restrictions banning them from places like parks, malls, and museums where children might be present. That ever-tightening leash has produced unintended outcomes with an almost mechanical predictability. Many cities have devised new no-go zones that keep them from living near places like school, parks, and daycares and have seen their homelessness rates spike as a result.

California passed a law in Nov. 2006 forbidding parolees who’d committed a sex crime from living within 2,000 feet of schools or parks. Less than five years later, the number of them who were homeless had risen from 88 to almost 2,000. In Oct. 2014, Milwaukee passed an ordinance banning many registrants from living within 2,000 ft of schools, parks, day cares, recreational trails, and playgrounds. The number of homeless registrants promptly soared from 15 to 230 in less than two years, according to an analysis in Oct. 2016 by the Milwaukee Journal Sentinel.

Now, new research suggests making it harder for offenders to find a place to live might increase reoffending. In a study released in July 2016, researchers from the California and Canadian justice departments looked at more than 1,600 California sex offenders on probation or parole. Overall, the group’s sex-crime recidivism rates were low–less than 5% during the five-year follow-up period. But those who were homeless were over four times more likely to commit a repeat sex crime than those who weren’t. “Collectively, transient status seems to be associated with higher sexual recidivism rates,” the researchers concluded. That’s likely because those who lack stable homes, jobs, and social connections are more prone to reoffend.

Please read the rest of Steven’s article courtesy of Quartz.

Seven-year-old Megan Kanka left her New Jersey home on July 29, 1994, for a summer afternoon bike ride around her neighborhood, but she never returned.

Instead, neighbor Jesse Timmendequas lured her into his home by promising her a puppy. He then raped and murdered her, dumping her body in a nearby park.

The murder sparked national outrage, not least because Kanka’s parents had never been told their neighbor had two previous convictions for sexual offences against small children. It also sparked a New Jersey law and then a 1996 federal law – Megan’s Law – requiring states to notify the public about sex offenders living in their neighborhoods.

Twenty years later, the names, pictures and addresses of registered sex offenders – including 218 who live, work or attend school in Lebanon County – can be found at the Pennsylvania State Police Megan’s Law Website. Such databases remain popular: a 2013 YouGov poll found that 71 percent of women and 52 percent of men believe it is “very important” to log all sex offender’s homes in the U.S.

However, advocates for offenders say registries continue to punish them even after they have served their sentence and even advocates for victims are lukewarm in their support.

“The intent of the Megan’s Law registry is commendable,” said Jenny Murphy-Shifflet, executive director of the Sexual Assault Recourse and Counseling Center of Lebanon County (SARCC). “I understand that its goal was to reduce sexual violence. The reality is that we haven’t seen any outcomes indicating that these goals have been reached.”

False sense of security

One out of every 728 Lebanon County residents is a registered Megan’s Law offender, and most have committed violent sexual crimes like rape, indecent assault or sexual abuse of children. Those offenders are required to have their address and place of work listed on the registry for 15 years to life depending on the crime and amount of offenses.

If that seems like a scarily high number, Murphy-Shifflet said it’s probably far lower than the actual number of sexual offenders, many of whom have never been caught. In fact, that’s one of the shortcomings of Megan’s Law, she said – it can create a false sense of security to residents who don’t live near offenders.

“Megan’s Law is almost like the Scarlet letter. They think it’s going to be easy to identify (sexual offenders),” agreed Kristen Houser, chief public affairs officer for the Pennsylvania Coalition Against Rape. “The reality is, most offenders hide in plain sight.” (Read the rest of the article in the Lebanon Daily News)

Turner was only sentenced to six months in jail; the leniency of the sentence has led to an effort to recall the judge. Being placed on a list seems like a small punishment in comparison to a prison term. But sex offender registries were never meant to be a punishment—and since they were introduced in the mid-1990s, they have proven to be both ineffective and often unjust.

The original goal of registries was not to provide restitution, but to protect communities. Reading the victim’s statement, it’s easy to see why sex offender registries seem like a reasonable and necessary response to crimes like Turner’s. Following a party, Turner dragged the victim behind a dumpster and penetrated her with his fingers. He was only stopped when two Swedish students physically chased him away, and then captured him. In response to his conviction, he has blamed a culture of drinking and partying on campus, rather than taking responsibility for his own violence.

Given the horrific nature of his actions, and his effort to shift blame, some might argue there’s a risk he could victimize others. Placing him on the sex offender registry, in theory, should warn communities of a potential threat. As one recent pro-registry editorial argued, “the rights of the victims, and the protection thereof, outweigh any perceived infringement of the rights of the criminals.”

The truth, though, is that there’s very little evidence that sex offender registries increase safety in any material way. A 2014 study conducted by Purdue University economics professor Jillian B. Carr of people on the North Carolina sex offender registry found that being on the registry had no effect on recidivism. That’s consistent with a 2007 report by Human Rights Watch, which looked at various studies and concluded that sex offender registries did little to prevent sexual violence. (Read the rest of the article online at Quartz)

In October 2014, the City of Milwaukee began prohibiting violent and repeat sex offenders from living within 2,000 feet of any school, day care center or park. That left just 55 addresses where offenders can legally move within the 100-square-mile city. And their living options soon will become more limited across Wisconsin. Republican Gov. Scott Walker signed a bill in February that prohibits violent sex offenders from living within 1,500 feet of any school, day care, youth center, church or public park in the state.

Cities and states continue to enact laws that restrict where convicted sex offenders can live, applying the rules to violent offenders such as pedophiles and rapists, and, in some cases, those convicted of nonviolent sex crimes, such as indecent exposure. They are doing so despite studies that show the laws can make more offenders homeless, or make it more likely they will falsely report or not disclose where they are living. And though the laws are meant to protect children from being victimized by repeat offenders, they do not reduce the likelihood that sex offenders will be convicted again for sexual offenses, according to multiple studies, including one from the U.S. Department of Justice.

In all, 27 states have blanket rules restricting how close sex offenders can live to schools and other places where groups of children may gather, according to research by the Council of State Governments. Hundreds of cities also have restrictions, according to the Association for the Treatment of Sexual Abusers (ATSA). And many laws are becoming more restrictive — along with Wisconsin, they expanded last year in Arkansas, Montana, Oklahoma and Rhode Island.

The restrictions can make offenders’ lives less stable by severely limiting their housing options, and can push them away from family, jobs and social support — all of which make it more likely they will abuse again, according to researchers who have studied the laws, such as Kelly Socia, assistant professor of criminal justice at the University of Massachusetts, Lowell.

“If [the laws] don’t work, and they make life more difficult for sex offenders, you’re only shooting yourself in the foot,” Socia said.  (Please read full article in Stateline, Pew Charitable Trusts)

That’s the question of David Feige’s startling new documentary “Untouchable,” a Tribeca Film Festival award winner.

I must note here that I am not completely objective about this film. I have known Feige for many years and was briefly a collaborator with him on a TV pilot project. At the same time I watched the movie with certain prejudices and experiences which made me instinctively hostile and resistant to its message.

Feige’s subject is America’s present set of policies with respect to convicted sex offenders. But, while the film is broadly arguing for a wholesale reassessment of these mechanisms of control, the director has great sympathy for the families of those victimized by sex offenders and for their desire for retribution.

In fact, that’s where his story starts: with powerful Florida lobbyist Ron Book and his daughter Lauren and their account of how she was molested and tortured by an immigrant housekeeper. Then Feige travels around Tampa with Judy Cornett, a working class mother whose son was kidnapped and raped by a local pedophile. Cornett has organized a patrol that seeks to protect neighborhood kids. Feige is an avuncular personality, and he wins his subjects’ trust and his remarkable interviews offer us a deeply affecting view of their heartbreak. (See full article in Forbes Online)

Under G.S. 164-47, the Sentencing Commission and DAC must jointly report to the General Assembly on the recidivism rates of prisoners and probationers every other year. The report defines recidivism as an arrest, conviction, or subsequent incarceration during a two-year period after being placed on probation or released from imprisonment. The report sample included over 35,000 probationers and nearly 14,000 inmates released from prison.

The report slices and dices the recidivism rates for probationers and prisoners in many ways—by gender, race, age, and marital status, among other personal characteristics. I encourage anyone interested in the particulars to read the full report. There are a few things I wanted to highlight in today’s post. (See highlighted items at North Carolina Criminal Law Blog)

Frustrated by the state’s refusal to offer any facts supporting its “conjectural” and “anecdotal” evidence defending section a(2) of North Carolina’s premises statute (N.C.G.S. § 14-208.18), Senior District Court Judge Beatty ruled on April 22, 2016 that the Does v. Cooper case filed two years ago in the Middle District (federal) Court is resolved without a trial. Having previously struck section a(3) as constitutionally vague, Judge Beatty found a(2) overbroad in burdening the First Amendment rights of registered citizens. Judge Beatty also permanently enjoined the state from prosecuting either under section a(2) or a(3). Judge Beatty had previously ruled section a(1) constitutionally sound (this portion of the statute bans registrants from being “on the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.”).

I found it interesting that Judge Beatty cites the dissent in the recent Packingham case decided by the NC Supreme Court in November (which is presently before the US Supreme Court pending cert). That case had nothing to do with proximity or presence, but Judge Beatty cites to language contained therein regarding the impact of internet restrictions on the First Amendment rights of affected citizens. Indeed, he spends a fair amount of time throughout his Memorandum Opinion and Order rooting his Judgment in cases related more to internet restrictions than presence or proximity restrictions. Judge Beatty makes repeated mention of his surprise at the state’s refusal to provide factually based statistics regarding recidivism. And he signals fairly strongly that he finds the Packingham majority completely out of touch.

I have included some excerpts from the opinion below for those of you who don’t have the time to read the full opinion:

Sex offenders have First Amendment rights. (Id. at 43.) The restrictions in subsection (a)(2) greatly burden those First Amendment rights by inhibiting the ability of restricted sex offenders to go to a wide variety of places associated with First Amendment activity.

North Carolina “may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech.” Cf. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245, 122 S. Ct. 1389, 1399, 152 L. Ed. 2d 403 (2002) (internal citations omitted).

Subsection (a)(2) places restrictions on offenders who have never committed a sexual crime against a minor. Moreover, no finding of dangerousness is required for a restricted sex offender to be subjected to subsection (a)(2)’s prohibitions. Merely committing one of the crimes listed in N.C. Gen. Stat. § 14-208.18(c) subjects the individual to the panoply of First Amendment burdens entailed by subsection (a)(2). The mere fact of a conviction of one of the crimes listed in the statute, by itself, is not enough to establish dangerousness to minors.

To use an expression utilized by the District of Nebraska, North Carolina, in this instance, has used a blunderbuss rather than a scalpel in its effort to protect children.

… In fact, Defendants have made no evidentiary showing at all regarding the rate at which sex offenders recidivate.

. . .Defendants’ decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. Defendants stated at the status conference that it would not be difficult for them to find an expert to support their case. Yet, Defendants chose not to seek out an expert even after repeated inquiries from the Court regarding whether they desired to do so and after the Court expressly stated that it believed that Defendants’ evidentiary offering was inadequate to carry their burden in this case.

I have just had a lesson in how far those who are opposed to our advocacy are willing to go to suppress the truth.

This started exactly a month ago with this op/ed in the March 13 online edition of the Longview, WA Daily News. RSOL wrote a rebuttal, received assurance from the News’ online editor that she would consider it, and sent it off. After a week of hearing nothing, receiving no response to inquiries, and not finding it online, it was posted on this blog and a link sent to the News’ publisher. The online editor responded on March 23rd that it would be printed sometime that week. When I looked for it on the 24th, imagine my surprise when, instead of the rebuttal piece, I found another op/ed defending their first op/ed supporting public registration. I updated my blog entry, and she was immediately contacted about the rebuttal piece; to the best of our knowledge, no response was received.

I looked every day; she was written again on the 29th, and, again, no reply was seen. March turned into April. On April 10th both she and the publisher were emailed with an inquiry. She responded the next day saying that she had replied on the 29th and that the piece had been printed on March 25th. She sent the link and, sure enough, there it was!

How could it have escaped our attention? We scoured the dailynews.com site every day looking for it. And how was the email of the 29th overlooked? We will never have an answer to the second question. The email has been searched repeatedly, and the searches have turned up no communication from her or anyone at the News on the 29th. If she did indeed send one, it has dissipated like the morning dew in mid-summer.

We can, however, answer the first question. It escaped our attention — and our fervent hunting day after day — because it appears to have been buried. It was not listed with other pieces printed in the Opinion section. If we had known what they named it, we could have searched on their site and found it. But no one else could have found it. No one else could have seen it. No one else could have determined that it existed in order to find it in order to read it.

When it was printed, all of the hyperlinks to the studies cited were removed. But then if no one will be reading it, no one will need any links to click, will they? Additionally, every op/ed printed there that we saw has a comment section. The rebuttal piece has none. But if no one will be reading something, they won’t be commenting on it, will they?

Just out of curiosity, we looked at other types of articles on the site. Whether it was news or sports, opinion or entertainment, it has a comment section. Even the articles taken from AP have comment sections. Certainly we did not look at every article they have posted over a lengthy period of time, but we looked at many, and every one looked at has a place to leave a comment. Only one was found with no comment capabilities, and that is the one rebutting theirs.

So that leaves only one question for the Longview, Washington Daily News: Did you bury our op-ed? If so, what are you afraid of? What do you not want people thinking about if they read that article? What do you not want people seeing if they click the links and read a couple of research studies? What do you not want people saying if they left a comment on the article?

What are you afraid of?