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March 7, 2017

Reviewing the ugly backstory of SCOTUS dicta on sex offender recidivism

Today's New York Times has this intriguing new Sidebar article by SCOTUS reporter Adam Liptak under the headline "Did the Supreme Court Base a Ruling on a Myth?".  Here are excerpts:

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....

A 2014 Justice Department report found ... that sex offenders generally have low overall recidivism rates for crimes. But they are more likely to commit additional sex offenses than other criminals. In the three years after release from prison, 1.3 percent of people convicted of other kinds of crimes were arrested for sex offenses, compared to 5.3 percent of sex offenders. Those findings are broadly consistent with seven reports in various states, which found that people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years....

Lower courts generally accept what the Supreme Court says. That is true not only about the law but also about facts subject to independent verification.  Last year, though, the federal appeals court in Cincinnati gently suggested that the Supreme Court had taken a wrong turn in its 2003 decision in Smith v. Doe. Judge Alice M. Batchelder, writing for a unanimous three-judge panel, described “the significant doubt cast by recent empirical studies on the pronouncement in Smith that ‘the risk of recidivism posed by sex offenders is “frightening and high.’”  The appeals court struck down a particularly strict Michigan sex-offender law as a violation of the Constitution’s ex post facto clause, saying it retroactively imposed punishment on people who had committed offenses before the law was enacted.  

The state has asked the Supreme Court to consider the case, Does v. Snyder, No. 16-768. The first paragraph of its petition says that the risk of recidivism “remains ‘frightening and high.’”  The constitutional question in the case is interesting and substantial.  And hearing the case would allow the court to consider more fully its casual assertion that sex offenders are especially dangerous.

March 7, 2017 at 09:49 AM | Permalink


This reminds me of an article from five years ago entitled "Confronting Supreme Court Fact Finding" by Alli Orr Larsen.


A general rule of thumb is to try to not put in unnecessary statements that upon scrutiny can be seriously challenged. This repeatedly is not followed, including in court opinions. "Obvious" facts were tossed in since the beginning probably.

Helpful to be aware of such things.

Posted by: Joe | Mar 7, 2017 10:04:18 AM

McKune v. Lile itself said the figure might be exaggerated. The Supreme Court very well might be joining with others in exaggerating the risks, but to be fair here:

"Therapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism. See U. S. Dept. of Justice, Nat. Institute of Corrections, A Practitioner's Guide to Treating the Incarcerated Male Sex Offender xiii(1988) ("[T]he rate of recidivism of treated sex offenders is fairly consistently estimated to be around 15%," whereas the rate of recidivism of untreated offenders has been estimated to be as high as 80%. "Even if both of these figures are exaggerated, there would still be a significant difference between treated and untreated individuals"). An important component of those rehabilitation programs requires participants to confront their past and accept responsibility for their misconduct."

And, in Smith v. Doe:

"Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature's findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is "frightening and high." McKune v. Lile, 536 U. S. 24, 34 (2002); see also id., at 33 ("When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault" (citing U. S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U. S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997)))."

It isn't like a single reference in a magazine article is used here. The lesson to me is that when using facts in this fashion, it is best to rely on general details, not specific facts like "80 percent." Very low recidivism rates there would be notable for constitutional purposes though either way a punishment might be unconstitutional. An ex post facto law, e.g., doesn't become okay if used against recidivists.

Posted by: Joe | Mar 7, 2017 10:24:47 AM

I am presently working on an interesting case concerning a man convicted of statutory rape (the girl was 15 and the sex was consensual) in Maryland more than 14 years ago. He served 18 months in a Maryland jail, and his Order of Judgment and Commitment required him to serve 10 years on a Maryland Sex Offender Registry following his release. He moved to Kentucky following his release and registered as a Sex Offender here, as required by Kentucky law. He has now been registered for 12 years, but Kentucky refuses to recognize the 10 year limit set forth in his Maryland Judgment, and insist that he must remain registered for LIFE under Kentucky law. The registered client has not had any other arrests or convictions since being released from prison. He is an expert in electronics communications, a retired Army Major (reserves) and his companies do business with the Dept. of Defense and Intelligence communities. Kentucky officials refuse to discuss "Full Faith and Credit" when it comes to registering sex offenders convicted under the laws of other states. He has lost his administrative appeal, and is now faced with filing suit against Kentucky's LIFETIME sex offender registry requirement, as it applies to him, or moving out of Kentucky, perhaps even back to Maryland, where he no longer has a registration requirement. Does anyone have interest in helping litigate his case?

Posted by: Jim Gormley | Mar 7, 2017 10:27:34 AM

The issue really ought to be whether the restrictions constitute punishment, and punishment in the constitutional sense, has to mean whether what the law would call a freedom is taken away. I think where a lot of this got sideways is that sex offenders, having satisfied a criminal judgment, got hit with things that don't look like punishment in the traditional sense. But that doesn't mean that they aren't punishment--telling someone they cannot exercise full First Amendment rights IS punishment, whereas taking the right to bear arms probably isn't. Neither is voting. Mobility restrictions, I would argue, ARE punishment.

Looking at the "intent" of the restrictions is really kind of silly, and I think that DPC and the 8th Amendment demand more. But what do I know?

Posted by: federalist | Mar 7, 2017 10:59:34 AM

...and what about recidivism rates for those who are convicted of possession of child pornography? Furthermore, what percentage of these individuals go on to engage in a contact offense? Should these individuals be lumped together with the other aforementioned sex offenders? Remember, we're talking about the largest group of sex offenders.

Posted by: tommyc | Mar 7, 2017 11:10:52 AM

"telling someone they cannot exercise full First Amendment rights IS punishment, whereas taking the right to bear arms probably isn't"

did you say something Justice Thomas? It hasn't been ten years yet!

The "issue" criteria cited are useful.

Posted by: Joe | Mar 7, 2017 11:37:46 AM

In my view, this whole issue is a problem with courts just making stuff up. They come up with these tests etc. to gussy up their own desired result. And the result, stuff that no free society should tolerate. Ex post facto speech restrictions? You kidding me?

Once we cede to the courts the ability to use the power to say what the law is to give their preferences the force of law, constitutional freedoms are at the whim of the ability to get one past the goalie.

Personally, if I were deciding on a particular SO restriction, I wouldn't give a hoot if 100% recidivism would occur. (Obviously, I'd care as a citizen.)

Posted by: federalist | Mar 7, 2017 1:02:29 PM

I have repeatedly said, the Supreme Court and other appellate courts do not know anything. Yet, they get to decide national policy on highly technical and expert matters. Nor does the Court have the investigatory ability of a legislature. Their track record of mistaken decisions is close to 100%.

I have been called insane, as a result.

Now, a left wing lawyer, writes an article in a left wing hate speech propaganda outlet, in support of lawyer clients, and that idea is being considered.

I have outlined a list of intermediate remedies to the Supreme Court's record of mistakes. Move to Wichita, so rent seeking is not its sole value, like the rest of Washington. Change the number of Justices to an even number to reduce reversals and stupid 5-4 decisions. Most of all, start putting ordinary people on the Court to reduce its error rate and to improve the readability of its decisions. Look at the discussion of the recent decisions below this post. Just all lawyer bullshit and gibberish, just worthless crap, upon which many here make a living.

The best remedy would be to enact an Amendment allowing judicial review, now prohibited by Article I Section 1 giving law making power to a Congress. Then pass a Judiciary Act making the number of Justices 500, a legislature class number to review constitutionality. Give it a research budget and powers to consult outside experts, and not just equally ignorant appellate lawyers. Let them hold informational hearings on these technical subjects, mandating that both sides of a question be reviewed. The Congress now just invites experts that will support their decided ideas.

Posted by: David Behar | Mar 7, 2017 3:10:12 PM

Jim. You may be interested in a legal attack I am mounting on a health care regulation. I want a decision of first impression in a federal court to declare it regulatory quackery. If that can be achieved, regulations may be voidable if not safe and effective.

Sex offender registries are quackery, albeit expensive rent seeking. They would not have even helped the little girls after which they were named, Megan and Jessica.

Posted by: David Behar | Mar 7, 2017 3:15:21 PM

There is a larger point here about virtue signaling that is being missed with these bogus facts. Justice Kennedy has a very mixed record on sex offenders because Kennedy is well aware of how sex offenders and the history of gay rights in this country are inextricably intertwined. It is important to remember that just a few decades ago being gay was a sex crime. This has caused Kennedy to often come down harsher on sex offenders out of a deep need to show that "this thing is not like the others". If one is on a long-term project to socially rehabilitate gays then its does one no good to get tagged as soft on pedophiles.

In short, Kennedy is not reciting such facts because he thinks they are true. He is reciting such facts and taking such positions because he wants to show that certain things are not true viz. that his desire to rehabilitate gays stems from the fact he's a sexual libertarian weirdo.

Posted by: Daniel | Mar 7, 2017 4:58:10 PM

Daniel. Fashinable catch phrases, like virtue signaling, crickets, etc. are annoying. Try the traditional word, supercilious.

Kennedy is the most hateful Justice, being a total weasel and turncoat, and the most supercilious. He should be impeached for being a heinous weasel, more specifically for reversing himself in Lawrence v Texas, and his annoying hat in hand demeanor begging Congress for higher salaries for these worthless, and toxic Justices on the Supreme Court.

Posted by: David Behar | Mar 7, 2017 9:10:19 PM

The mental health counselor who wrote the 1986 Psychology Today article that started this whole recidivism lie needs to print a retraction!

Posted by: kat | Mar 8, 2017 11:16:22 AM

More on that old article with a recent comment from one of the authors:


Posted by: Joe | Mar 8, 2017 12:54:49 PM


Supercilious and virtue signaling are not the same concepts. Virtue signaling is not about feeling superior to others; rather it is signaling that one adheres to or subscribes to a superior position that the intended audience is presumed to share. It is an appeal to group bias to buttress what otherwise would be seen as an arbitrary claim. Let's use gays rights. A supercilious person would be a person who believed that they were morally superior to others because they supported gay rights. But someone who is engaged in virtue signaling is only stating that gay rights is the morally superior position because everyone shares it without any further averment that they personally are superior because of it.

Kennedy may be both a supercilious person and engaged in virtue signaling. The focus of my post however is on the latter, on Kennedy's behavior.

Posted by: Daniel | Mar 8, 2017 1:15:07 PM

@Daniel. Thank you for that valid clarification.

Is there a term for virtue signaling that is driven by rent seeking? Or, is nearly all virtue signaling driven by rent seeking?

An example is the support for gay marriage. The virtue being signaled is equal treatment. The real aim is to generate more divorce claims for family lawyers.

What is resistance to virtue signaling called? For example, very few gays get married in countries with legalized gay marriage for over a decade, because gays are not stupid, and are not falling for the trap set by the virtue signaling of family lawyers, the originators of the idea.

Posted by: David Behar | Mar 8, 2017 8:13:01 PM

@ Jim Gormley

I'd think he would be better off moving back to Maryland, or some other state, e.g. Pennsylvania. On a Writ of Mandamus, the PA Commonwealth court held that not giving credit for time on a registry in another jurisdiction violates the equal protection clause of the U.S. constitution (Tommy Lee JACKSON v. COMMONWEALTH of Pennsylvania, No. 388 M.D.2014.). Although not raised, the court eluded to a violation of the Full Faith and Credit Clause of the U.S. Constitution, and a violation of the equal protection clause of the PA constitution.

The Pennsylvania Supreme Court has been handing the state it's ass in a lot of SOR cases to the extent that the law requires only those convicted of, incarcerated or on supervised release for a crime requiring registration on or after December 20, 2012. As long as a person completed a term of registration by that date, they are not required to register. If a term of registration has not been completed by that date, the registrant will get credit for time on another registry.

Posted by: Huh | Mar 15, 2017 6:45:19 PM

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